Before Senator Cory Gardner, Republican of Colorado, voted to confirm Jeff Sessions as attorney general last February, President Trump’s nominee reportedly assured him that targeting the booming nascent recreational marijuana industry, in Colorado and seven other states where it is now legal, wouldn’t be a priority for the Trump administration.
That was then. Now, consistent with the perpetually inconsistent nature of the Trump administration, Sessions has done an about-face and rolled back an essential piece of Obama-era guidance — the so-called Cole Memorandum — that provided the assurance that states needed to implement their own recreational marijuana laws without fear of federal interference. Going forward, Sessions’ decision will give broad discretion to US attorneys to decide whether to prosecute pot growers and distributors, who have a badge of approval in their states but no protection from the feds. (The expansion of medical marijuana is not affected by the decision, which is protected by the Rohrabacher-Farr Amendment .)
Sessions’ move introduces high-stakes legal danger to established businesses in places like Colorado and Oregon, and puts Massachusetts’ budding recreational industry at risk. Large sums have been invested building the framework for recreational weed here, and Sessions’ decision creates a much riskier proposition for business formation.
To be clear, pot entrepreneurs have always understood the inherent jeopardy of entering the industry, because of the contradiction between state and federal laws governing marijuana, which is still a Schedule I federally controlled substance. But Sessions is just compounding the uncertainty, not clarifying it. After all, he hasn’t ordered an outright cannabis crackdown. He’s just punting this decision to local US attorneys, who suddenly have the power to decide how aggressively to enforce federal pot laws. What that means is that pot enforcement will become an even more discretionary and unpredictable matter.
In Massachusetts, new US attorney Andrew Lelling issued a vague statement in response to the DOJ’s directive: “[O]ur office will aggressively investigate and prosecute bulk cultivation and trafficking cases, and those who use the federal banking system illegally.” Meanwhile, the US attorney in Colorado has said there will be no change to marijuana enforcement despite Sessions’ announcement. A patchwork of different responses is already forming.
Gardner appears to be girding for battle, and has said he’s prepared to hold up confirmation of DOJ nominees “until the attorney general lives up to the commitment he made to me prior to his confirmation.” But if Sessions won’t relent, Congress can take the matter out of his hands. Lawmakers could change the law to give the cannabis industry enough clarity to proceed. It would be an unexpected turn of events for a Republican attorney general to force the hand of a Republican Congress in such a way, but liberalizing federal pot laws may
ultimately be the only foolproof way for Gardner and other defenders of legal pot to prevent this attorney general, or a future one, from thwarting the will of state