Medical Marijuana

Renewed War on Marijuana Spurs Congress to Defend Federalism

Next week's budget showdown will include a fight over an amendment prohibiting the DOJ from preventing states from legalizing medical marijuana.


Those who advocate a safe, regulated and legal climate for marijuana sales and use were unquestionably alarmed by the elevation of anti-marijuana crusader Jeff Sessions to attorney general. Public opinion polls show strong and growing nationwide support for legalization. In California, medical marijuana has been legal for 21 years and remains about as controversial as any other form of prescription medication.

During a Senate hearing in 2016, Sessions, then a Republican senator from Alabama, said, "We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it's in fact a very real danger." His follow-up comment—that government officials need to send the message "that good people don't smoke marijuana"—has often been quoted as Sessions, now the U.S. attorney general, attempts to put his views into action.

Most significantly, Sessions revoked the Obama-era Cole Memorandum—a 2013 missive penned by former Deputy Attorney General James Cole that provided guidance for federal prosecutors in light of state legalization laws. The nonbinding memo provided some assurance that the feds wouldn't crack down on states if their laws met a few standards, such as preventing distribution to minors and keeping revenues from funding drug cartels.

But a funny thing happened on the way back to a 1980s "War on Drugs" approach to marijuana this time around: Congress got its hackles up. Marijuana businesses complained loudly, of course. But "Capitol Hill screamed just as loudly," reported Politico. "And it wasn't just the Democratic members of the Congressional Cannabis Caucus. It was Republican senators, too."

Congress has been dealing with the issue in a temporary and inadequate way since 2001. That's when a representative from New York first introduced a bill to stop the Justice Department from using funds to prevent states from legalizing medicinal marijuana. Ultimately, the similar Rohrabacher-Farr amendment—now known as Rohrabacher-Blumenauer, following the retirement of Rep. Sam Farr (D-Calif.)—became law in 2014. It halted the Justice Department from trying to prevent 33 states and the District of Columbia from implementing laws that "authorize the use, distribution, possession, or cultivation of medical marijuana."

Because it is attached to spending bills, the measure needs to be reauthorized every year. This year's reauthorization became a flashpoint in budget negotiations before the short-lived federal government shutdown. Congress approved the amendment, but the protections only last until Feb. 8—the deadline for the next budget vote to avoid another shutdown. Indeed, real threats often lead to more substantive solutions.

Rep. Dana Rohrabacher, the California Republican who co-authored the amendment, hopes its passage will buy time to come up with a permanent fix. He has introduced H.R. 975, which he tells Leafly "would be putting into law the idea that the states will be the ones that will make the decision" and would make clear to "everybody, not just the Department of Justice, but everybody, like the banking regulators and other regulators," that they must treat cannabis like "any other commodity throughout the states that have designated it that way."

The legislation has one sentence: "Notwithstanding any other provision of law, the provisions of this subchapter related to marihuana shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana." Archaic spelling aside, the bill offers protections to the eight states plus the District of Columbia that have legalized marijuana for recreation and the 29 states that allow it as medicine.

Marijuana advocates have debated a variety of approaches to keep the feds from prosecuting businesses and individuals who sell and consume marijuana. The Obama administration's effort to provide sensible guidelines to U.S. attorneys, although well-intentioned, was too ephemeral. It was overturned with the stroke of a pen. An emerging multibillion-dollar industry needs more security in order to invest and expand.

Likewise, efforts to force the Drug Enforcement Administration (DEA) to reclassify marijuana could also be fleeting. Currently, the DEA classifies marijuana as a Schedule I drug that has "no currently accepted medical use and a high potential for abuse." That classification is as inexplicable as Sessions' comments about "good people," but a federal agency—and the federal government in general—is the wrong place to fight this battle.

The correct battlefield is in the states. The states are resolving the issue on their own in a way that reflects local values and preferences, and upholds the intent of our Founding Fathers. Attitudes toward marijuana differ greatly between California and Mississippi, for instance. Sessions' boss, Donald Trump, advocated a state approach to marijuana when he was campaigning for president. Congress needs to act to keep the federal government from undermining state lawmakers and voters.

Without the attorney general's approach, the uneasy status quo may never have come to a breaking point. "Did Jeff Sessions just increase the odds Congress will make marijuana legal?" asked Politico. Maybe not, but he has increased the chances that Congress will let states make these decisions for themselves. If Congress follows through, it will be a boon not only to a growing industry but to one of our Constitution's most-cherished concepts.