Jeff Sessions's new pot policy: What happens now?

Jeff Sessions's new pot policy: What happens now?
© Getty Images

Three days after California became the sixth state to legalize recreational marijuana, Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsWant to evaluate Donald Trump's judgment? Listen to Donald Trump Democrat stalls Biden's border nominee Garland strikes down Trump-era immigration court rule, empowering judges to pause cases MORE announced he was ending a policy that deferred to states liberalizing their marijuana laws. The 2013 Cole memo, issued by the Obama Justice Department and now overturned, stated that the federal government would not move against those acting in compliance with robust state marijuana regulations.

Sessions’s memo heightens tensions between the federal government and those states where marijuana is being produced and sold for recreational use: California, Colorado, Nevada, Alaska, Oregon and Washington, and sometime later this year, Massachusetts and Maine.

It’s unclear why Sessions chose to act now. He could have rescinded the memo written by former U.S. Attorney General James M. Cole at any point in his term, and when he rescinded other Obama-era enforcement memos late last year, some thought the Cole memo would remain in place. If Sessions’s goal was to stop California — the world’s sixth largest economy — from opening its retail markets, the timing is particularly odd, since California’s first adult-use marijuana businesses opened on Monday.


As to what will happen now, we can only speculate. At the moment, a federal spending rider prevents the federal government from using its resources to interfere with medical marijuana businesses in the states. That rider is set to lapse this month, however, and it leaves recreational marijuana businesses entirely unprotected.

In overturning the Cole memo, Sessions made it clear that the nation’s U.S. attorneys will be left to exercise their discretion over licensed marijuana businesses within their purview.

Colorado U.S. Attorney Bob Troyer, the first to weigh in publicly, said there would be no immediate change in marijuana prosecutions. He noted that his office is guided by principles that govern all of its prosecution decisions — that is, “focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state.”

Allowing U.S. attorneys to exercise total discretion, however, could be particularly disruptive. Imagine California’s four U.S. attorneys each adopting a different policy with regard to the part of the state over which they have jurisdiction. A compliant marijuana business in the northern district, which covers Oakland and San Francisco, might be treated entirely differently than a similar one in Los Angeles, which falls in the central district. Until Sessions’s memo, compliance with state law essentially was a safe harbor for businesses and individuals. That's no longer true, though any attorney advising a client surely would tell them that it's better to be in compliance than out.

As to what the Justice Department actually can do about state marijuana conduct, the limits are more practical than legal. The authority of the federal government to crack down on marijuana conduct — even conduct legal under state law — is unquestioned.

The worst-case scenario for marijuana reform states is that the Drug Enforcement Administration could make arrests, seize assets and property, and seek long prison terms against those operating under state law. More realistically, prosecutors could send cease-and-desist letters to businesses (or their landlords) ordering them to stop violating federal law or face further consequences.

State governments need not participate in any crackdown on the industry. The anti-commandeering principle inherent in the 10th Amendment precludes state authorities from being pressed into the service of federal policy. But there is also very little that state lawmakers can do to protect their citizens from federal enforcement.

Several political options exist at the national level, however. Sessions has lobbed the ball squarely back into Congress’s court. Congress could vote to extend the spending rider both in time and scope. It could protect marijuana businesses past Jan. 19, when the current spending bill is set to lapse. It could also extend protection to anyone operating under the authority of state law, whether medical or recreational.

Congress could also change the legal status of marijuana more generally. It could move marijuana out of Schedule I (where it is categorized alongside heroin and LSD) to a more lenient category where it is permitted with a doctor’s prescription. Or, it could move marijuana out of the Controlled Substances Act entirely, treating it the way alcohol and tobacco are — a regulated but legal substance.

The announcement thus creates a significant test of Congress’s willingness to stand up to the administration on matters of state policy.

Sam Kamin is the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver. Follow him on Twitter @ProfSamKamin.