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Even Without the Rider That Protects Medical Marijuana, a Pot Crackdown Is Unlikely

Despite his fear and loathing of cannabis, Jeff Sessions has good reasons to tolerate legalization.

DOJDOJAs we approach the end of 2017, it's not clear whether Congress will renew the Rohrabacher-Blumenauer amendment, which prohibits the Justice Department from interfering with state medical marijuana laws. James Higdon, writing in Politico Magazine, argues that the demise of the spending rider would be "a major boost" for Attorney General Jeff Sessions' "yearning to battle legal marijuana," leaving him "free to unleash federal drug agents" on state-licensed growers and distributors. That gloss overestimates the amendment's significance and underestimates the factors that have deterred Sessions from cracking down on state-legal marijuana, notwithstanding his well-known fear and loathing of the plant.

The medical marijuana amendment, which was first enacted in December 2014 and has been renewed each year since then, has proven a significant barrier to DOJ harassment of patients and providers. A federal appeals court has ruled that the amendment bars prosecution of medical marijuana growers and suppliers whose actions comply with state law, including continued pursuit of cases initiated before the amendment took effect. Sessions himself concedes that the rider ties his hands in those respects. The protection also extends to civil actions aimed at shutting down dispensaries. Sessions, not surprisingly, resents the restraint, and in May he urged Congress to let the amendment expire.

Yet the Rohrabacher-Blumenauer amendment does not apply to state-licensed businesses that supply the recreational market, which Sessions nevertheless has refrained from targeting. Sessions says he is sticking to the Obama administration policy of going after state-legal cannabusinesses only if they impinge on "federal law enforcement priorities" such as preventing interstate smuggling and sales to minors. While that policy leaves a lot of wiggle room for an attorney general inclined to enforce the federal ban on marijuana more aggressively, Sessions so far has not taken advantage of it. There are several good reasons for his reticence:

1. Most Americans think marijuana should be legal, and an even larger majority, including most Republicans, says the decision should be left to the states.

2. Sessions' boss, who is already irked at him because of the Russia investigation, has repeatedly said states should be free to legalize marijuana for medical or recreational use (although he is less enthusiastic about the latter option).

3. Marijuana is legal for recreational use in eight states, home to one in five Americans. Medical marijuana is legal in 29 states. A cannabis crackdown would anger officials from those states, creating political headaches that neither Sessions nor Donald Trump needs.

4. While the DOJ could close down conspicuous cannabusinesses easily enough, maybe just by sending some threatening letters, it does not have the resources to prevent home cultivation, which is legal in seven of the eight states that allow recreational use. A crackdown would shift the supply from a few visible and regulated sources to myriad uncontrollable growers.

Whatever happens with the Rohrabacher-Bluemenauer amendment, these factors would continue to discourage Sessions from giving his anti-pot prejudices full rein.

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  • Eidde||

    It's a bit early to throw in the towel on that amendment, a major Congressional rollback of War on Drugs, All the Time.

    This bipartisan amendment broke an important psychological barrier - "hey, we don't have to vote the way the drug warriors tell us all the time!"

    What a loss of momentum if the amendment dies!

  • Ken Shultz||

    Trump has been pretty good about keeping his campaign promises, and the one about leaving it to the states is as important as any.

    I would add two other reasons why Sessions or the Trump administration would be unlikely to crack down.

    1) The tax revenue marijuana is generating for the states.

    It isn't just that state government is worried about their constituents getting angry; state officials are living off of that revenue stream. Their pensions and raises are being funded by that revenue stream.

    2) Some of the unions that have been organizing in the marijuana industry are unions that also represent public employees--some of which are law enforcement related.

    The retail workers are largely organized by the inter. service workers union, but my understanding is that the growers have been largely organized by the Teamsters.

    https://tinyurl.com/y7wmzbgt

    The Teamsters also represent law enforcement all over the country--and evetybody wants those local endorsements.

    Shutting down a Teamster represented industry is no way to go about getting an endorsement from your friendly, neighborhood, law enforcement union.

  • Eidde||

    OK, so why is the Rohrabacher (sp?) Amendment in danger with all this potential backing?

  • Ken Shultz||

    For one thing, the support I was talking about mostly comes from the states--rather than at the federal level.
    All politics is local for congressmen, and that issue doesn't matter as much to Republican congressmen in red states. They don't have as much to lose. The Republican House member from South Carolina doesn't need to worry about whether Colorado or Nevada swings Republican or Democrat in the next presidential election, but Donald Trump (and Jeff Sessions) need to worry about states where even recreational marijuana is legal--like Colorado and Nevada. So it's probably more important to them than it is to individual congressmen.

    That being said, it may also not be necessary anymore--so why should the socially conservative members of congress need to stick their necks out? Trump has no interest in raiding state legal dispensaries--that was an Obama era thing. The Obama administration raided state legal medical marijuana clinics hundreds of times during his first term, and now that Obama is gone, it may just not be necessary to protect them from the president anymore. The idea that progressives were on board with cannabis was always highly suspect. Even in deep blue states, marijuana, medical or otherwise, was mostly legalized over the objections of their deep blue, Democrat legislatures.

    Hell, in the state of New York, they don't even think individuals should be free to buy sugary soft drinks. Why would they let people consume marijuana?

  • Eidde||

    If Trump thinks the federal dope laws are constitutional, he should enforce them unless constrained by Congressional spending riders.

    Hopefully, he will decide these laws are unconstitutional and he won't enforce them, then dare Congress to impeach him. But let me put it this way...it might happen eventually.

  • Eidde||

    Or to borrow an argument from Rand Paul, if Congress doesn't appropriate enough money to enforce all the laws it passes, that's a delegation to the President of the discretion to decide how to spend the enforcement money until it runs out, which could mean setting priorities...but with civil asset forfeiture, how much of a constraint is that?

  • Ken Shultz||

    Well, there's always a difference between the way the world should be and the way it is. I was talking about the way it is.

    Sometimes inconsistency is a good thing--if being consistent means the Court says the feds can prosecute the drug war because of the interstate commerce clause.

    That justification underlies half of what the government does nowadays. Trump isn't a libertarian. He's just got good sense (aside from his public statements and tweets), and he's a capitalist.

    Being competent can take you a long way. If we can't have a principled libertarian in the White House, I'm glad to have someone that's pragmatic and reasonable. All the presidents before Trump, including during Obama's first term, were about throwing millions of people in prison and squandering hundreds of billions until morale improved. If Trump only sees the futility of that through the lens of electoral politics, that still puts him head and shoulders above the rest on this issue.

  • Duncan20903||

    Prosecutorial discretion is centuries old common law. It's not as if ceasing enforcement would find sworn agent twiddling their thumbs at the doughnut counter. Plenty of other crime to keep them all busy.

  • Duncan20903||

    In 2012 the US Attorney whose bailiwick included the SF Bay area sent a letter to the landlord which owned the building housing Harborside Health threatening to steal the building unless it was evicted. The State Courts refused eviction because breaking Federal law isn't an adequate reason for eviction under State law. The landlord's next stop was Federal Court which also refused to evict because the landlord didn't have standing to bring evictions proceedings to in Federal Court. The result is that the landlord is now an "innocent" third party and Harborside is still in business in that location.
    http://www.sfgate.com/bayarea/.....088396.php
    http://goo.gl/aLsuKX

    My point is that people who think that the Feds can close down the industry for the cost of a letter don't know how stubborn the fans of cannabis can be.

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