In Case You Missed It:
At the beginning of this year, January 4, 2018, Attorney General Jeff Sessions issued a Memorandum for all United States Attorneys with the subject line “Marijuana Enforcement.”* If you haven’t yet read this memo, you may be somewhat surprised at the mildness of its tone, given the outrage which was unleashed following its release. The memo itself clarifies that the United States Code still considers cultivation, distribution, and possession of marijuana to be a serious crime with significant penalties, and explicitly states that marijuana is a “dangerous drug.” The memo then overtly rescinds “previous nationwide guidance specific to marijuana enforcement”, i.e. memorandum issued under the Obama administration regarding federal marijuana law enforcement in states that have legalized use. Finally, the memo directs all U.S. Attorneys to “follow the well-established principles that govern all federal prosecutions” as laid out in the U.S. Attorneys’ Manual, chapter 9-27.000. Functionally what this means is that the Trump administration is rolling back all previous policies related to the non-enforcement of federal marijuana laws and calling for prosecutions of marijuana related offenses to be approached with the same analysis and priority as RICO violations (criminal syndicates), counterfeiting, or aircraft hijacking.
Despite the mild wording, make no mistake this is an intentional, direct, and abrupt change in position which comes at a time when the tide of marijuana legalization has swelled to arguably unstoppable proportions. As you may remember, it was the Obama administration’s position that the federal government would take a hand’s off approach to enforcement of federal marijuana laws in states which had legalized its use. Instead opting to allow those states to self-govern in this area, as each individual state is the best judge of their people’s perspective on the issue. This was a welcome relief to many of the manufacturers and dispensaries that has been subject to government raids. However, even after the Justice Department issued the memos signaling a cease fire on those operating within their state’s marijuana laws, the raids continued to happen. It wasn’t until 2014 and the passage of the Rohrabacher-Farr amendment, which prohibited the Justice Department from spending government funds to interfere with the implementation of state medical cannabis laws, that the raids truly ended.
A Bit of a Mixed Message:
The reason Jeff Sessions’ marijuana memo is such a big deal is that it exacerbates a significant conflict in law. The federal government outlaws marijuana under any circumstances, where as many states have chosen to legalize marijuana for medicinal and/or recreational use. Which means marijuana users/manufacturers/distributers that are fully compliant with all state regulations are at the same time violating federal law. This conflict creates the exact kind of uncertainty which the existence of a rule of law attempts to alleviate. Under the Obama administration’s guidance, the conflict issue became moot. However, this shift towards enforcement of federal marijuana laws has brought the conflict back to the forefront and makes it ripe for litigation/appeal. As this issue comes to a head, it is only a matter of time before the Supreme Court weighs in.
From a political perspective, the Trump administration’s position seems inconsistent with the general rhetoric and unnecessary given the changing times. Yes, we can all see the hypocrisy in a far-right republican administration so blatantly interfering with the sacrosanct state’s rights which its party so zealously defends. It’s almost enough to make one believe that the true motivation is grounded more in legislating morality rather than the talismanic value of limiting government overreach. Isn’t state’s rights the basis of many republican arguments such as healthcare, same-sex marriage, and gun control? But rapidly legalized marijuana? The federal government MUST get involved. Unfortunately, this inconsistency and sacrifice of principle in favor of the immediate goal is nothing new.
What to Expect In the Future:
Jeff Sessions’ memo frees up the Justice Department to pursue prosecutions for federal marijuana violations in state’s which have legalized marijuana, which seems scary, but practically, does very little. As of now, the aforementioned Rohrabacher-Farr amendment is still in effect and as long as it remains so, the Justice Department is congressionally prohibited from spending any funds on prosecution of state legalized medical marijuana. Don’t get too comfortable however, because the Rohrabacher-Farr amendment is set to expire soon. To make matters even more confusing the extension/expiration of this amendment is wrapped up in the spending bill, which is currently being debated in Congress, and the impending government shut down. What a fun time to be an American.
BREAKING NEWS: As of today, after a brief government shutdown, congress voted on a 6-week continuing resolution that maintains present federal spending levels and priorities through March 23, 2018… which, includes the Rohrabacher-Farr amendment! So enjoy 6 more weeks of crazy, I mean medicinal marijuana protection!
These are interesting times in which we live. Check back to get updates as the marijuana debate continues.
* https://www.justice.gov/opa/press-release/file/1022196/download