Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, January 4, 2018

Some early thoughts and comments now that AG Sessions has rescinded the Cole Memo

I have so many thoughts about what might come next in the wake of today's big news that Attorney General Jeff Sessions has rescinding the Cole Memo (basics here and here).  Helpfully, Sam Kamin already has this effective Hill commentary astutely "Jeff Sessions's new pot policy: What happens now?". I recommend the piece in full, and here is just a snippet of its many notable thoughts:

In overturning the Cole memo, Sessions made it clear that the nation’s U.S. attorneys will be left to exercise their discretion over licensed marijuana businesses within their purview....

Allowing U.S. attorneys to exercise total discretion, however, could be particularly disruptive. Imagine California’s four U.S. attorneys each adopting a different policy with regard to the part of the state over which they have jurisdiction. A compliant marijuana business in the northern district, which covers Oakland and San Francisco, might be treated entirely differently than a similar one in Los Angeles, which falls in the central district. Until Sessions’s memo, compliance with state law essentially was a safe harbor for businesses and individuals. That's no longer true, though any attorney advising a client surely would tell them that it's better to be in compliance than out.

As to what the Justice Department actually can do about state marijuana conduct, the limits are more practical than legal. The authority of the federal government to crack down on marijuana conduct — even conduct legal under state law — is unquestioned.

The worst-case scenario for marijuana reform states is that the Drug Enforcement Administration could make arrests, seize assets and property, and seek long prison terms against those operating under state law. More realistically, prosecutors could send cease-and-desist letters to businesses (or their landlords) ordering them to stop violating federal law or face further consequences.

State governments need not participate in any crackdown on the industry. The anti-commandeering principle inherent in the 10th Amendment precludes state authorities from being pressed into the service of federal policy. But there is also very little that state lawmakers can do to protect their citizens from federal enforcement.

Several political options exist at the national level, however. Sessions has lobbed the ball squarely back into Congress’s court. Congress could vote to extend the spending rider both in time and scope. It could protect marijuana businesses past Jan. 19, when the current spending bill is set to lapse. It could also extend protection to anyone operating under the authority of state law, whether medical or recreational.

Congress could also change the legal status of marijuana more generally. It could move marijuana out of Schedule I (where it is categorized alongside heroin and LSD) to a more lenient category where it is permitted with a doctor’s prescription. Or, it could move marijuana out of the Controlled Substances Act entirely, treating it the way alcohol and tobacco are — a regulated but legal substance.

The announcement thus creates a significant test of Congress’s willingness to stand up to the administration on matters of state policy.

Speaking of "matters of state policy," I also found interesting and notable this short commentary by Charles C.W. Cooke at National Review headlined "Marijuana Is a Gateway Drug to Federalism." Here is an excerpt:

When I speak on college campuses about the need for a more robust federalism, I am often asked how conservatives should sell the idea to those who do not share their political goals....

My answer, for a while now, has been “marijuana.” “It will annoy many people,” I have suggested, “when the executive branch is staffed by drug warriors, and they decide to enforce federal law against states that have voted to legalize. When it happens, and when there’s a reaction, we should point it out.” ...

And here I am pointing it out.  There is no good reason for Washington D.C. to have a view on this.  If Colorado or Oregon want to legalize weed while Mississippi and Utah ban it, that’s fine. In fact, that is how the country is supposed to work.   The United States is a collection of . . . well, of states; it is not a giant centralized democracy with fifty regional departments. Congress should make it a priority to get the federal government out of this area, and to let the states, not the attorney general’s fealty, determine which rules are best for their citizenries. And conservatives, of all people, should celebrate that.   The Founders did not write the Constitution to impose uniformity on hemp.  Rarely will we get a better teaching moment than this one.

Meanwhile, shifting from matters of constitutional design to dollars and cents, I wonder if marijuana stores in various states across the nation are experiencing any uptick in business (or are even considering an increase in prices). I think a shrewd marijuana consumer, realizing the uncertainty that now defines federal marijuana enforcement, might want to frequent their favorite establishment while still certain its doors are open.

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