4 Things Congress Can Do to Stop a Cannabis Crackdown

Will bipartisan criticism of Jeff Sessions' marijuana memo inspire legislative action?



Last week Attorney General Jeff Sessions provoked bipartisan protests from members of Congress when he rescinded Obama administration guidelines discouraging U.S. attorneys from prosecuting state-legal marijuana suppliers. The move united progressive Democrats who support drug policy reform with conservative Republicans who believe in federalism (especially if they happen to represent one of the 29 states that have legalized marijuana for medical or recreational use). Legislators, of course, can do more than complain; they have the power to resolve the conflict between state and federal law in this area more definitively than Justice Department memos ever could. Here are some of their options.

1. Spending Rider

Since 2014 a spending rider now known as the Rohrabacher-Blumenauer amendment has prohibited the Justice Department from interfering with the implementation of state medical marijuana laws. According to the U.S. Court of Appeals for the 9th Circuit, the rider means the DOJ may not prosecute people for marijuana-related conduct that complies with state law, even in cases initiated before the rider was passed. The rider must be renewed every fiscal year, and Sessions has urged Congress not to do so, saying it unwisely constrains prosecutorial discretion. The amendment, which was extended through January 19, will expire after then unless it is included in the overdue omnibus spending bill for this fiscal year.

As currently written, the Rohrabacher-Blumenauer amendment does not protect state-licensed marijuana suppliers who serve recreational customers. In light of Sessions' decision, there is a decent chance that an expanded version of the rider, covering all state marijuana laws that depart from prohibition, will be included in the next omnibus spending bill. But the rider would last only until the end of the current fiscal year, after which it would have to be renewed again. It is also possible that other federal appeals courts will read the rider more narrowly than the 9th Circuit has (although that circuit does include five of the eight states that have legalized marijuana for recreational use).

2. Respect State Marijuana Laws Act

Recognizing the uncertainty caused by the limited duration and scope of his spending rider, Rep. Dana Rohrabacher (R-Calif.) is also sponsoring the Respect State Marijuana Laws Act, which he and Rep. Justin Amash (R-Mich.) first introduced in 2013. The act is admirable in its simplicity, declaring that the provisions of the Controlled Substances Act dealing with cannabis "shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana."

The current version of the bill, introduced last February, has two dozen cosponsors, including 12 Republicans. It may pick up more support thanks to Sessions. "Because of @jeffsessions actions," Rep. Rod Blum (R-Iowa) tweeted on Friday, "I'm joining the 'Respect State Marijuana Laws' bill. I believe in States' Rights & I've seen how cannabis derived medicines can stop seizures in a child, help a veteran cope with pain, or provide relief to a senior with glaucoma."

3. Ending Federal Marijuana Prohibition Act

The Ending Federal Marijuana Prohibition Act, which was introduced by Rep. Thomas Garrett (R-Va.) last February, is somewhat more ambitious than Rohrabacher's bill but would have much the same practical effect. Rather than carving out exceptions to the federal ban, it removes marijuana from Schedule I of the Controlled Substances Act entirely while criminalizing its importation into states where it remains illegal. The bill has 15 cosponsors, including five Republicans.

4. Marijuana Justice Act

Like Garrett's bill, the Marijuana Justice Act, which was introduced by Sen. Cory Booker (D-N.J.) last August, would deschedule marijuana. It also includes provisions expunging federal marijuana possession convictions, allowing reduced sentences for other federal marijuana offenders, and restricting federal law enforcement money for states with racially disproportionate marijuana arrest rates. The bill has just one cosponsor, Sen. Ron Wyden (D-Ore.).

Rohrabacher thinks there are bipartisan majorities in both the House and Senate that would support legislative protection for state-licensed cannabusinesses threatened by aggressive enforcement of the federal ban on marijuana. As this compilation of criticism by Tom Angell at Marijuana Moment shows, many prominent Democrats, including House Minority Leader Nancy Pelosi (Calif.) and Senate Minority Leader Chuck Schumer (N.Y.), reacted negatively to Sessions' announcement. Vocal Republican critics include, in addition to Rohrabacher, Amash, Garrett, and Blum, Sens. Cory Gardner (Colo.), Lisa Murkowski (Alaska), Dan Sullivan (Ark.), Rand Paul (Ky.), and Dean Heller (Nev.), along with Reps. Thomas Massie (R-Ky.), Mike Coffman (Colo.), Don Young (Alaska), Carlos Curbelo (Fla.), Matt Gaetz (Fla.), Kevin Cramer (N.D.), Jason Lewis (Minn.), and Ryan Costello (Pa.).

If the Rohrabacher-Blumenauer amendment is renewed, it will be part of a big spending bill that Donald Trump would feel compelled to sign. But why would the president, who according to his press secretary "believes in enforcing federal law," sign a bill that provides more permanent protection? Rohrabacher notes that Trump has repeatedly said states should be free to legalize marijuana. In a July 2016 interview with a Colorado Springs TV reporter, for instance, Trump was asked what he thought of Chris Christie's promise to stop marijuana legalization in states such as Colorado. "I wouldn't do that, no," he replied. "I'm a states person. I think it should be up to the states, absolutely."

By signing a bill like Rohrabacher's, Trump could reconcile his commitment to marijuana federalism—a position supported by a large majority of Americans, including most Republicans—with his avowed desire to enforce the law. "I think Jeff Sessions has forgotten about the Constitution and the 10th Amendment," Rohrabacher told reporters last week. "Our president has not. I think we can reach the president now if we become mobilized."

NEXT: Washington, California Trying to Punish Businesses that Overly Cooperate with Feds on Immigration

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  1. One thing the SCOTUS could do to stop a cannabis crackdown:
    Properly declare the war on drugs unconstitutional as there is zero authority to tell Americans what they can and cannot ingest into their bodies.

    1. Ha ha ha ha!

      If they were to declare that, then the FDA would just become a government version of Consumer Reports.
      Can’t have that!

      1. I’d hope FDA wouldn’t be that bad!

      2. its already worse than that. CR have a certain amount of respect for their faux neutrality. FDA are deeply in bed with Big Pharma, raking in big bux to support their racket. Big Pharma are near apopleptic over the prospect of a plant nearly anyone can grow in their own backyard or a bathroom planter that can deliver the mediccal benefits cannabis does. No more hugely profitable opiate prescriptions. Dat be BAAAADDDDddddd…….

        DEA are nearly as close to complete takedown from apoplepsy at the prospect of losing their monopoly on trying to control a common field weed. The “war on drugs” costs we taxpayers tens of billions of dollars per year and does nothing useful.

        And the Prison for Profit lobby won’t like it one bit, either, as they will instantly lose a few million involuntary “customers”.

        Local and state level coppers don’t like it none neither, cuz they won’t get to pull someone over for imaginary “weaving” and “smell marijuana” to “justify” seizing whatever cash or property happens to turn them on that day.

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    1. There is nothing more that needs to be said than that.

    2. You mean re-legalize it. Marijuana was already not illegal in the USA.

  2. …Sessions has urged Congress not to do so, saying it unwisely constrains prosecutorial discretion.

    It’s awful when lawmakers get in the way of the wishes of prosecutors.

    1. Note to Sessions: wise is not any part of the legislative process — — —

  3. Too bad our Constitution only allows the president and courts to pass or repeal laws.

    Those poor Congressmen are just helpless spectators in this whole process.

  4. 4 Things Congress Can Do to Stop a Cannabis Crackdown

    Start obeying enumerated powers?

    1. Y Y Y y y y you m m m mean, like, READ Article One Section Eight and then ENFORCE the Tenth Article of Ammendment?

      WithOUT resorting to a Convention of States?

  5. I guess “stop being asshats” isn’t an option.

    1. Of course not. Don’t be absurd.

  6. Just as “only Nixon could go to China” only Trump could stop the War on Pot.

    (Actually, Romney would have been an even more symbolic person were it not for that tiny detail about winning the presidency first)

    1. You might think, with him as a “tough on crime and moral decay and these young thuggish kids” ’80s throwback, as well as a lifelong personal abstainer who views even occasional drinking as a weakness, he’d be all over that shit. But he is not particularly tough on pot and never has been particularly obsessed with it, far as I know. The circles he travels in have probably inured him against shock and pearl-clutching at recreational drug use, would be my best guess.

      1. He came out for legalizing all drugs ~25 yrs. ago. Hasn’t spoken or written on that lately, but hasn’t explicitly repudiated that view either AFAIK.

  7. Laws can’t be removed without more complicated laws to replace them that do no really get rid of the old law but makes good political copy

  8. Bundy case dismissed with prejudice. Why won’t Reason cover this? Why am I first hearing about this development in my own comment???

    1. Beltway Cocktail Parties. How often do I have to remind you?

    2. Thanks Fist for mentioning this.

      ACLU refused to back Bundys because they are deemed a “hate” group and protest with firearms.

      1. If that’s true, it’s probably more because of the firearms thing, which is indeed a (newly announced) official restriction on their “defend all speech” policy. But more radical revisionism is surely on the way. The ACLU is caught in a death spiral; with each whorish concession to outraged donors, liberal donors abandon them and the donor pool they have to placate shifts left. (And, of course, their institutional culture keeps shifting left with it.)

        In the meantime, it is worth noting that they stood firmly and defiantly for Citizens United, despite how unanimous and utterly rabid the loathing for that decision is across the entire left half of the American political spectrum, from the very center on out (and a very, very large amount of the conservative rank and file; it’s a very unpopular decision). And that, despite being explicitly against gun rights, they stood nearly alone against No Fly No Buy–defying, again, the unanimous and even more rabid opinion of their donor class, the opinion of nearly all Americans as well as Donald Trump, and (in a somewhat watered-down form) that of the entire Republican party and the NRA. That took balls, you have to give them that.

        1. I would support the ACLU more if they were more consistent with supporting all civil rights. Free speech, political speech, gun rights.

          The ACLU supposedly got $24M in donations in one weekend Jan 2017. I am sure that will last them a while.

          1. You got any idea how much they pay themselves, and their lawyers?

    3. Well, the Bundys are fucked if they try another stunt. The feds tried it the peaceful way, letting them have their little stand-off until numbers dwindled, did their best to bring in everyone alive, and prosecute them through the courts.

      And that failed.

      So next time the Bundys decide to point guns at federal agents, they’re probably going to get fire-bombed.

      1. Who knew withholding evidence wouldn’t work out for prosecutors this time.

        1. since knowingly withholding evidence is an offense, ALL the prosecutors involved in that conduct need to be prosecuted. Criminally. They misused their authority to advance a political agenda against innocent citizens, and cost WE taxpayers a few million bux making some already overweight lawyers even fatter.

      2. The same goes for armed citizens shooting back at law enforcement.

        Funny how “standoff” is used for armed protesters who never hurt anyone but “99%” is used for the Occupy Wall street protesters.

        As they say, the media dictates the narrative.

      3. Duh… dint see too many of the videos submitted as evidence in the Kangaroo Trial, didjya? During the entire peaceful protest and demonstration, there were hardly any guns visible amongst the protestors and guardians of liberty. The ONLY guns ever seen in anyone’s hands were long guns being carried with full muzzle control.

        On the other hand, the Feds illegally had a dozen or so trained snipers with true High Powered Rifles staged in the area, and had their long rifle scopes’ crosshairs centred on quite a number of the citizens gathered, for hours. There was not one piece of credible testimony claiming any of the protestors pointed any of their guns at any of the Fed agents. THAT is a fabrication of the mainstream press. Do some research someplace other than the Lie Stream Media or the DOJ. Neither get it anywhere near correct.

    4. Because you don’t read the Reason headlines?

    5. It’s on the front page this morning. Maybe posted last night even

      Charges Against Nevada Rancher Cliven Bundy and His Sons Tossed from Federal Court
      Judge cites “flagrant prosecutorial misconduct” on the government’s part.
      Brian Doherty|Jan. 8, 2018 4:45 pm

  9. The move united progressive Democrats who support drug policy reform with conservative Republicans who believe in federalism.

    Please don’t call it “drug policy reform” if you have only deigned to apply it to marijuana. It seems if Senator Blowhard sandwiches in a few anti-Sessions statements in between his various press conferences on Four Loko, allergy medication, flavored cigars, junk food (it’s a drug, don’t you know), and whatever scary new drug he read the EDM kids are eating these days–not to mention dead silence on all the shit you can (and if you’re poor, do) get a felony collar on–“reformers” will lick his balls…

    1. …Separately: What kind of “federalist” principle per se would justify being appalled at federal prosecutors enforcing established federal law against large, flagrant violators? Is regulating local marijuana production and distribution somehow an illegitimate realm of federal authority? If so, why only marijuana, of all substances, and why only in states that have legalized? Alternatively, if with rather less sense and legitimacy, do these Senators simply oppose a ban on marijuana in particular–if so, are these Republicans going on record as favoring a Congressional repeal of the law banning it?

      If they take any of these positions, there’s of course no inconsistency in pushing for the “unprincipled” compromise. But if they don’t, they’re a bunch of grandstanding opportunists for self-righteously opposing Sessions. I’m glad that they are, of course, but Reason should not give them the fig leaf of their ridiculous “federalism.”

      1. Well, anyone with any kind of federalist principle should be appalled at federal enforcement and implemetation of criminal laws that are rightly the purview of the states.

        Of course, this should apply to all federal drug laws and not just cannabis. But since when are legislators (and most voters for that matter) principled about anything.

        1. And to all states, not just the ones that have legalized, as I mentioned. Again, I’m not clutching my pearls that politicians are not principled. I’m questioning why Reason should describe their position as following from federalist principles, when they should instead be called out for why such a position is ridiculous and opportunistic on its stated grounds.

    2. Addendum: Forgot to add bodybuilding supplements to my laundry list. Do you even nanny bro?

    3. You can accept the good with the bad, or you can just accept the bad. You won’t get un-tainted good.

      1. Yes. Reread my statement, especially toward the end. I explicitly address that.

  10. Rather than carving out exceptions to the federal ban, it removes marijuana from Schedule I of the Controlled Substances Act entirely while criminalizing its importation into states where it remains illegal.

    My GOD, man!

    We can’t use the Commerce Clause like that, it’s too close to the actual text.

  11. I can see room for a state to ban possession or trade of a substance within it’s borders but what possible constitutional grounds are there for the federal government to declare a substance illegal?

    I know the usual suspects but none really hold up.

    Along these lines it strikes me as absurd that any bill submitted by congress does not include an explicit case for it’s constitutional authority to do so. This would make it impossible for a bill’s justification to change over time which I’m certain is why it doesn’t happen.

    1. The CSA does have such a section up front.

  12. “The best way to get a bad law repealed is to enforce it strictly.”
    – Abraham Lincoln

  13. I still can’t understand why Republicans at large don’t take the official stance of “I’m personally against XYZ, but there is no authority for the government to get involved” on a number of these social issues like weed. If they did that Republicans would INSTANTLY jump 10-20% in their vote tally. Most people I know that are sane people overall, but usually vote Democrat, do so because of abortion, weed, etc. They’re fiscally moderate or conservative, but put a higher weight to “social” issues and hence can’t go R.

    If the GOP would just take the position above, which would somewhat placate the bible thumpers, and also bring on board moderates who realize weed isn’t the devil, they’d kill it. Fact is bible thumpers will still vote R anyway, so there’s no downside and a ton of upside.

    If DT were the one to push the end of the war on weed alone I bet that would guarantee him being reelected in 2020. Bible thumpers would still be on board, but it would sway a lot of the middle to realize he’s not a maniac trying to bring back slavery or whatever dumb shit they believe.

  14. Still waiting for an explanation of why it takes ANOTHER LAW to remove anything with a proven medical use from schedule one. To leave Marijuana on schedule one is illegal, no? So maybe just a contempt of congress citation for Jeffy for not removing it from schedule one already?
    Oh, wait. DC is a constitution free zone.

  15. Ultimately it doesn’t matter whether Congress acts to stop Sessions — federal prohibition of marijuana is unconstitutional and always has been.

    A century ago, the feds had to amend the Constitution to prohibit alcohol. Any form of it that would be safe to drink that anyone would enjoy the taste of is wholly a manufactured substance that does not occur in nature. But the feds couldn’t ban drinking it without a constitutional amendment, in the form of the 18th amendment.

    The 18th was wholly repealed by the ratification of the 21st amendment, returning prohibition and legalization authority to the states where it has always been outside of the few years the 18th was in effect. The 21st specifically mentions liquor, not intoxicants in general, but if a manufactured substance cannot be prohibited then no naturally grown plant can be.

    The 21st allows the feds to interdict smuggling of intoxicants from where they are legal to where they are not when that smuggling crosses state borders. The 21st amendment is the ONLY place in the Constitution where the feds are granted any authority to prohibit trafficking in recreational intoxicants of any kind whatsoever.

    The core nature of the US legal system is that the government only has those powers it is granted (and never any power it is forbidden), while the citizens are free to do anything that is not explicitly forbidden. Our representatives in government appear to have forgotten this.

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