Marijuana

Sessions' Wishy-Washy Marijuana Comments Reflect the Ambiguity of Current Policy

The next attorney general could crack down on state-licensed cannabusinesses without changing the State Department's official position.

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During his confirmation hearing yesterday, Jeff Sessions did not do much to clarify how he will treat state-licensed marijuana businesses as attorney general, but that is not entirely his fault. Marijuana remains illegal under the Controlled Substances Act, and the Justice Department cannot simply announce that it will no longer enforce that ban in states that have decided to legalize the drug for medical or recreational use. At the same time, the feds do not have the resources to fully enforce marijuana prohibition in states that have opted out of it, and they cannot constitutionally force those states to help. The short-term future of the newly legal cannabis industry will depend on how the Trump administration splits the difference between those two extremes.

After a lot of mixed signals, included a crackdown on medical marijuana that contradicted promises of restraint, the Obama administration settled on an ambiguous policy outlined in a 2013 memo from Deputy Attorney General James Cole. Cole told U.S. attorneys that in deciding which marijuana cases to pursue in states that have legalized the drug, they should be guided by eight "enforcement priorities," including prevention of violence, interstate smuggling, distribution to minors, and "adverse public health consequences related to marijuana use." Cole did not offer any assurances, but the implication was that federal prosecutors should leave state-legal cannabusinesses alone unless their operations implicate one or more of those priorities.

Exactly what that means is a matter of interpretation, and Cole left open the possibility that other, unspecified priorities might also justify civil or criminal actions against state-licensed marijuana suppliers. But in practice, the Obama administration since the 2013 Cole memo generally has refrained from interfering with state policies allowing commercial production and distribution of marijuana for medical or recreational use.

Which brings us back to Sessions, who at yesterday's hearing conceded that enforcing the federal ban on marijuana is "a problem of resources for the federal government" and said "some" of Cole's criteria "are truly valuable in evaluating cases." But he added that "the criticism I think that was legitimate is that they may not have been followed." In fact, that was the theme of the April 2016 Senate hearing at which Sessions said "the Department of Justice needs to be clear" that "marijuana is not the kind of thing that ought to be legalized." The title of the hearing, which was held by the Senate Caucus on International Narcotics Control, asked, "Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?" Sessions' answer clearly was no.

Depending on your perspective, the Cole memo can be read as a license for federal interference rather than a promise of prosecutorial forbearance. The goal of preventing "adverse public health consequences related to marijuana use" by itself could be interpreted to justify as wide a crackdown as a passionate pot prohibitionist like Sessions might like to see. So even if Sessions committed himself to sticking with the policy described in the Cole memo (which he did not do yesterday), that would not preclude him from prosecuting state-licensed marijuana suppliers, seizing their property, or threatening to do so (which would be enough to seriously disrupt the industry, if not shut it down altogether).

Given Sessions' ambiguous statements about an ambiguous policy, it is not surprising that reaction from supporters of legalization was mixed. "Senator Sessions indicated that the Justice Department's current guidelines for marijuana policy enforcement are 'truly valuable' in setting departmental priorities," noted Aaron Smith, executive director of the National Cannabis Industry Association. "That belief, along with the support for state sovereignty on cannabis policy expressed by President-elect Trump and his team, should lead Sen. Sessions to maintain the current federal policy of respect for state-legal, regulated cannabis programs if he is confirmed as attorney general."

Or maybe not. "Senator Jeff Sessions' response to questions about marijuana and federalism during his attorney general confirmation hearing today was wishy-washy at best," said Bill Piper, director of national affairs at the Drug Policy Alliance. "It is clear that he was too afraid to say the 'reefer madness' things he said just a year ago, and that's progress. But he made it clear throughout the hearing that he will enforce federal law. He could have said he will respect state marijuana law, which is what President-elect Trump said on the campaign trail, but instead he said it is up to Congress to change the law. Sessions has a long history of opposing marijuana reform, and nothing he said at the hearing suggests he has changed his mind."

By contrast, Robert Capecchi, director of federal policies at the Marijuana Policy Project, was encouraged by what Sessions did not say: "It is notable that Sen. Sessions chose not to commit to vigorously enforcing federal prohibition laws in states that have reformed their marijuana laws. He also recognized that enforcing federal marijuana laws would be dependent upon the availability of resources, the scarcity of which poses a problem. He was given the opportunity to take an extreme prohibitionist approach, and he passed on it."

As Eric Boehm noted, the case for optimism rests partly on Trump spokesman Sean Spicer's response when Kennedy brought up Sessions' marijuana views on Fox News yesterday: "When you come into a Trump administration, it's the Trump agenda you're implementing, not your own, and I think Senator Sessions is well aware of that." That could be interpreted to mean that Trump's support for marijuana federalism will override Sessions' anti-pot instincts, but that's assuming Trump sticks to the position he took during his campaign. Given Trump's many reversals and retreats (some of them welcome), that is surely not a safe bet.

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39 responses to “Sessions' Wishy-Washy Marijuana Comments Reflect the Ambiguity of Current Policy

  1. I heard Sessions has hookers piss on bags of pot at night while he wears a red cape and jock strap.

    1. *gathers mental image*

      *heads to bunk*

    2. It’s not too late for Obummer. He could have a real legacy instead of being the first not-completely-white President.

      1. But, coward’s gonna cow.

  2. Obama could reschedule marijuana. Trump could reschedule marijuana. Congress could amend the Controlled Substance Act. Sessions could choose not to prioritize marijuana prosecutions. But all of these things close off options and take business opportunities from favored industries.

    It will take enough states enjoying the economic benefits from legal marijuana and federalists in Congress to actually push for a change here.

    1. Technically, Obama cannot reschedule marijuana. Under the CSA, it’s the Attorney General who can reschedule.

      Remember the interview where Jake Tapper asked Obama about it and Obama said it’s up to Congress and then got irritated when Tapper refused to accept that answer by pointing out that as CEO, Obama certainly doesn’t need Congress to get marijuana rescheduled? Maybe Jake Tapper should have been there to ask Sessions that same question.

      1. Remember the interview where Jake Tapper asked Obama about it

        No.

        But if you can point to the part of the Controlled Substances Act which says who is responsible for drug scheduling, we can skip the talking heads.

      2. He has a pen and phone. That’s all that’s needed BTW,Tapper is showing himself to be a hack and a ass .He takes any rumor with TDS and runs with it. He doesn’t understand that people like him helped get Trump elected . He just doubles down.

    2. Let’s check out some facts.

      Proceedings to add, delete, or change the schedule of a drug or other substance may be initiated by the DEA, the Department of Health and Human Services (HHS), or by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group concerned with drug abuse, a state or local government agency, or an individual citizen. When a petition is received by the DEA, the agency begins its own investigation of the drug.

      The DEA also may begin an investigation of a drug at any time based upon information received from laboratories, state and local law enforcement and regulatory agencies, or other sources of information. Once the DEA has collected the necessary data, the Deputy Administrator of DEA, requests from HHS a scientific and medical evaluation and recommendation as to whether the drug or other substance should be controlled or removed from control. This request is sent to the Assistant Secretary of Health of HHS. Then, HHS solicits information from the Commissioner of the Food and Drug Administration and evaluations and recommendations from the National Institute on Drug Abuse and, on occasion, from the scientific and medical community at large.

      1. So, we’re fucked. The DEA is not going to reschedule themselves out of work.

        “I’m sorry, what I meant was ‘we gotta protect the children!'”

        1. Also noteworthy from the wiki entry:

          The HHS recommendation on scheduling is binding to the extent that if HHS recommends, based on its medical and scientific evaluation, that the substance not be controlled, then the DEA may not control the substance. Once the DEA has received the scientific and medical evaluation from HHS, the DEA Administrator evaluates all available data and makes a final decision whether to propose that a drug or other substance be controlled and into which schedule it should be placed.

          Personally I have more confidence in Congress “re legalizing” it federally. BATFE becomes BATFEM and monthly scheduled tax debits become a thing.

          1. Anyway the point here is that all the people that say the sitting President has the authority to deschedule at will, that’s not strictly true. But if, say, Obama weren’t mendacious as hell, he would have devised an architecture of cabinet picks that would be actively sympathetic to doing a formal review on all the voluminous scientific evidence regarding cannabis, and could have had cannabis dramatically descheduled from day one. But yeah, that guy.

  3. Trump could preempt Sessions on marijuana by following through on his campaign promise to reschedule it himself. That seems to be lost in the weeds at this stage, though, as everyone is rushing to paint the most horrific picture possible of Trump’s cabinet. I’d rather Reason or at least someone just ask Trump whether he intends to follow through on that campaign promise and try to hold him to it.

    Many will still be angry about Sessions do to his immigration stances, but I doubt, or at least hope, that Trump’s team simply picked him for that purpose rather than his drug war stance. Marijuana can be taken out of his hands and the damage minimized.

    I would really like the president who finally ends the war on weed, if not the broader war on drugs, to be a Republican. I’m tired of Democrats/progressives taking credit for shit they have little part of.

    1. I’m tired of Democrats/progressives taking credit for shit they have little part of.

      Is this why only solid red states have legalized marijuana?

      1. Correlation and causation… They are tough concepts for you, aren’t they?

        1. So then what’s the real story on states legalizing marijuana?

          1. Deep cover socons that never vote and secretly toke, duh.

      2. “Is this why only solid red states have legalized marijuana?”

        Other than Alaska, there are no solid red states that have legalized marijuana. Unless we’re talking about for medical use, but even then many of those states have only legalized CBD oil.

    2. My interpretation is that the prez has no direct scheduling powers, but is capable of bullying or catalysing the rescheduling process through political manoeuvre.

      1. During her confirmation hearing, AG Lynch came out as opposed to rescheduling, IIRC?or anyway, she expressed a view that marijuana is a dangerous drug.

    3. Reschedule it on the “unitary executive” theory, that says the prez can do anything any member of the executive branch is authorized to do, even if Congress was clear by naming particular executive officers as having that authoriz’n? Seems to void the Administrative Procedures Act, for one.

  4. In other Trump news, the new Buzzfeed story is going to grab the headlines, but CNN’s more toned down and serious reporting – referencing the same god damn nonsense – is going to be taken as legitimate. Drudge is currently pushing a rather less ridiculous notion that the intelligence services themselves are, with Obama’s applause, I’m sure, trying to discredit the incoming president.

    These people hyperventilate over the notion that Russia wanted to undermine our democracy. And in their rush to undermine Trump, they are doing more to fuel that than Russia ever could. The Democrats game here is getting very dangerous. Far more so than anything Trump has done.

    1. the intelligence services themselves are, with Obama’s applause, I’m sure, trying to discredit the incoming president

      This. If Trump doesn’t gut the agencies, he’s making a mistake. This is an insurrection of sorts.

      I’m so aggravated with the coverage this is getting that I want to cast a vote for Trump retroactively. The Democrats and the federal monolith obviously need to be crushed.

      1. This. If Trump doesn’t gut the agencies, he’s making a mistake. This is an insurrection of sorts.

        I wonder if this isn’t a godsend. Trump has been very pro-surveillance, pro-War on Terror, obviously. But if the intelligence agencies want to make him an enemy, he’s a guy who holds a grudge. And said grudges tend to dictate his behavior (my interpretation). He could become completely hostile to their agenda.

        The biggest concern right now is that Trump isn’t going to have a credible opposition left. The media and Democrats are engaging in breathtaking levels of stupidity that is going to leave them incredibly marginalized. There’s no way this shit isn’t going to backfire on them.

  5. “He was given the opportunity to take an extreme prohibitionist approach, and he passed on it.”

    “He was given the opportunity to admit having sex with animals, and he passed on it.”

    1. He’s from Alabama. I thought sex with animals was a given.

  6. State Department can reschedule drugs? I would’ve thought Kerry would’ve rescheduled marijuana by now.

  7. Wait – is he up for Sec State or Sec Justice?

  8. Sessions struggles with struggle sessions.

  9. Sessions as AG or not, I truly believe we have passed a tipping point on this issue. There is no turning back now, especially after adding California to the rolls of legalizers. National polls consistently show majority of Americans in favor of legalization. If the Feds start screwing with the 5-6 states that have legalized, I believe there will be a lot of blowback.

  10. “Marijuana remains illegal under the Controlled Substances Act, and the Justice Department cannot simply announce that it will no longer enforce that ban in states that have decided to legalize the drug for medical or recreational use.”

    Is the Rohrabacher (sp?) Amendment still in force? Doesn’t this amendment stop the federal government from going after state-legal medical marijuana?

    Also, is Reason assuming that something is “illegal” which is protected by the Tenth Amendment? Congress can only make things illegal by enacting constitutionally-valid statutes. Are we assuming that their drug statutes are constitutional?

  11. “At the same time, the feds do not have the resources to fully enforce marijuana prohibition in states that have opted out of it, and they cannot constitutionally force those states to help.”

    The alcohol industry would beg to differ.

    If Congress can pass a “We’ll Cut Off Your Highway Funds If You Don’t Set Your Drinking Age At 21” Act, I wouldn’t be surprised if Sessions introduced a bill that would do the same thing if the states didn’t nullify their legal weed laws.

    1. But…am I crazy, or didn’t Congress go the other way, and prohibit the expenditure of federal funds to obstruct the various state medical marijuana laws?

      1. That’s not set in stone, unfortunately… it needs to be renewed every two years or so, and now I’m getting reports of Congress won’t be allowing such amendments or riders in expenditure bills in the future.

        I’d like to THINK that the Trump Administration won’t go the FYTW route in regards to legal cannabis, but I’ll believe it when I see it.

  12. Dear Donald and Jeff:

    Consider the Federal Census stats on yearly driving fatalities from 1990 to 2009. All states, ‘legal’ or not, have seen their death rates drop, but on average, those with medical marijuana laws posted declines 12% larger than the non-medical states. Vehicle airbags helped as well, consistently throughout the country, without affecting the disproportion between the ‘legal states’ and those ‘not yet, in 2009’.

    In 2012 a study released by 4AutoinsuranceQuote revealed that marijuana users are safer drivers than non-marijuana users, as “the only significant effect that marijuana has on operating on a motor vehicle is slower driving”, which “is arguably a positive thing”.

    Research at the University of Saskatchewan indicates that, unlike alcohol, cocaine, heroin, or Nancy (“Just say, ‘No!'”) Reagan’s beloved nicotine, marijuana actually encourages brain-cell growth. Studies in Spain show that it has tumor-shrinking, anti-cancer properties. These were confirmed by the 30-year Tashkin population study at UCLA.
    Marijuana is a medicinal herb, the most benign and versatile in history. “Cannabis” in Latin, and “kaneh bosm” in the old Hebrew scrolls, quite literally the Biblical Tree of Life, used by early Christians to treat everything from skin diseases to deep pain and despair.

    Now consider the politicians, prosecutors, and police who pose on church steps on their campaign trails, but can’t face the scientific or historical truths about cannabis.

  13. This is the one of best post in marijuana, So It will be taking enough states enjoying the economic benefits from legal marijuana and federalists in Congress to actually push for a change here.

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