Attorney General Urged to Maintain Non-Enforcement Policy Against Legal Cannabis

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An administration seemingly torn between positions on states’ rights and enforcement of federal law is being urged by lawmakers to continue a policy established under the Obama administration of not applying U.S. Justice Department (DOJ) resources to prosecute federal marijuana laws in states that have legalized its use.

A group of senators issued a letter asking the incoming head of the Justice Department to respect state rights by offering assurances they will not interfere with the implementation of cannabis laws in their respective states. Marijuana sale and use are still considered illegal at the federal level as a Schedule 1 drug in the Controlled Substances Act.

Attorney General Jeff Sessions has long opposed recreational marijuana use as a senator. However, now that he is heading up the Justice Department, some legislators fear he may begin to crack down on state-sanctioned cannabis use, regardless of voter-approved measures legalizing the cultivation and use of the substance.

With Washington, Colorado, and now, California and six others legalizing recreational use, state officials are counting on the extra tax revenue generated from cannabis businesses to fill government coffers. So, there is little surprise that these states would seek help from their members of Congress to solicit the new attorney general to maintain the status quo.

In a 2013 memorandum, dubbed the “Cole Memo,” the DOJ indicated it would not aggressively pursue marijuana enforcement in states that legalized its use. In part, the memo said, “In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities.”

The key words in that memo holding the feds at bay are “…strong and effective regulatory and enforcement systems.” Keeping that in mind, the majority of new states legalizing the recreational use of marijuana have provided the lead time needed to develop rigorous and comprehensive oversight systems. Lawmakers keenly understood that new cannabis laws would need to be much more robust if they wanted to keep the federal government out of their business.

It still is not clear what Attorney General Sessions intends to do after implementation of recreational use in states that have approved cannabis, yet with statements coming out of the White House drawing questions, some states are not taking any chances. “It is essential that states that have implemented any type of practical, effective marijuana policy receive immediate assurance from the DOJ that it will respect the ability of states to enforce thoughtful, sensible drug policies in ways that do not threaten the public’s health and safety,” the senators’ letter said.

The group of lawmakers, consisting mostly of Democrats, are claiming that clear guidance from the DOJ will allow states to protect growth in tax revenue, infrastructure spending, and the jobs that come along with cannabis legalization.

Supporting the senators’ position, the Rohrabacher–Blumenauer Amendment attached to the Consolidated Appropriations Act of 2017 states that no federal funds from that act may be used “to prevent any [state] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The amendment will be effective until September 30, 2017 unless reauthorized by Congress. The Rohrabacher–Blumenauer Amendment became law after President Trump signed it on May 5, 2017; however, he added a signing statement that provided a little wiggle room. The signing statement read, “Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories. I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”

While some have interpreted the statement as a reservation by the Trump administration for the right to enforce federal laws at some point in the future, during the campaign, the rhetoric coming out of the Trump camp indicated that he supported states’ rights on medical marijuana laws. Early comments from White House spokesperson Sean Spicer also made senators nervous about the intentions of the incoming AG. Spicer indicated that there is a difference between marijuana used for medicinal purposes and recreational use.

While Spicer did not elaborate on what position the DOJ would take on legal cannabis, Sessions has previously said that he believes we would have a “better, healthier nation” if we did not allow marijuana to be sold at “every corner grocery store.” Others note that while Jeff Sessions is very much a “law and order” guy, he is also extremely dedicated to respecting states’ rights.

In their letter, the senators pointed to the fact that states which have legalized marijuana have set up a comprehensive tax and regulatory infrastructure to provide for the safe sale and use of cannabis. They believe that by receiving assurances from the federal government that they will not interfere with state operations, it will provide investors with the confidence they need to participate in cannabis businesses.

One of the biggest obstacles states face in implementing legal marijuana is government banking regulations. In California, state Treasurer John Chiang formed an economic roundtable to identify and attempt to remedy the problems the cannabis industry faces under federal banking restrictions. He is calling on D.C. lawmakers to put forward legislation that would decriminalize marijuana banking. Many banks still will not accept cannabis-related deposits because of the risk posed to their federal charters and FDIC insurance.

In issuing the letter, the senators hope that it will at least provide a bit of influence over the AG’s looming decision on enforcement, saying, “As attorney general, you have the power to determine the federal government’s law enforcement priorities, including how agency resources can be best utilized. We believe that the Cole Memorandum provides a strong framework for effectively utilizing the DOJ’ s resources and balancing the law enforcement roles of the federal government and the states.”

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