The Briefcase Diaries

From Green to Grey: State Legalized Recreational Marijuana and the New Grey Area

On January 1, 2018, the California law that legalizes recreational marijuana went into effect. However, three days later, the head of the Justice Department, Attorney General Jeff Sessions, rescinded the Cole Memo, released in 2013 by the Obama Administration’s Justice Department, that created a safe harbor for the legalization of marijuana at the state level.

At this point in time about 30 states have legalized marijuana in some capacity – whether that be recreational marijuana or marijuana solely for medicinal purposes. At the same time however, marijuana remains illegal at the federal level. In 1970, President Richard Nixon signed the Controlled Substances Act into law. The Controlled Substances Act listed marijuana (along with heroin, cocaine and other substances) as a Schedule I drug, making marijuana illegal under all circumstances.

Attitudes surrounding so many things, especially things at the center of politics, evolve over time and by 1996, California became the first state to legalize marijuana for medicinal purposes. Though California legalized medical marijuana, marijuana was still and is still illegal for any and all purposes under federal law creating a conflict of laws.

Fortunately or unfortunately, depending on your view, our country evolved and in 2013 the Justice Department released the Cole Memo instructing state prosecutors to only bring cases involving marijuana that were considered big. In other words, the Obama Justice Department wanted federal laws to be put on hold in states where marijuana was legalized in some capacity unless the cases involved the marketing marijuana to minors, violent gangs, or money laundering. In essence, the Cole Memo created a safe harbor for legal marijuana usage and enterprises in states where marijuana was legal or became legal. This memo was viewed by many to be the start of a path to the legalization of marijuana at the federal level, however we have yet to see that happen.

Now, the Trump Justice Department has revoked those 2013 guidelines, and, because of a lack of new guidelines, it is unclear as to what exactly is going to happen as a result. What is clear, is that medical marijuana remains out of the Justice Department’s reach. This is because the Justice Department cannot prosecute cases involving legal medical marijuana. Congress, through its Spending Power, has placed restrictive amendments on the Justice Department’s appropriations bills that bar the Justice Department from interfering with a state’s medical marijuana program.

Although medical marijuana is safe from federal interference, there are no amendments to the Justice Department’s appropriations bills that restricts the Department’s ability to go after a state’s recreational marijuana program. Attorney General Jeff Sessions has essentially opened the door for a return to the aggressive federal enforcement of federal marijuana laws. This move by the Justice Department has the potential to negatively impact growers, distributors, retailers, and even individual users in states where recreation marijuana is legal. It remains unclear as to how this decision will pan out because the decision to prosecute recreational marijuana is still at the discretion of the prosecutors in those states. Colorado, the first state to legalize recreation marijuana, did so in 2014. The Colorado United States Attorney, Bob Troyer, has stated that, in light of the Justice Department’s latest announcement, he doesn’t plan on deviating his approach from the guidelines issued under the Cole Memo. It is unclear as to what position the other United States Attorneys or new United States Attorneys, appointed by the Trump Administration, will take.

What can be done though? At the judicial level, not much. The Federal Courts or the Supreme Court are unlikely to get involved because of the Constitution’s Supremacy Clause, which invalidates state or local laws that are contrary to federal law. The Executive Branch has already made a decision. So that leaves Congress; only Congress can fix this situation.

One option is that Congress pass a bill legalizing marijuana at the federal level. However, given the Trump Administration’s change of heart on not interfering with the states that choose to legalize marijuana, there is a chance that President Trump would veto the bill. Congress could potentially overturn the President’s veto if there is enough bipartisan support behind the bill. Many Republicans in Congress have voiced their displeasure with the Justice Department’s recent move, and an October 2017 Gallup poll showed that 64% of the American people support the legalization of recreational marijuana.

Another option is for Congress to take an approach similar to the approach it took when it restrained the Justice Department’s power to interfere with state medical marijuana programs. Congress could amend the Justice Department’s appropriations bill to reflect the guidelines set out in the Cole Memo; barring the Justice Department from interfering with state legalized recreational marijuana without certain circumstances (e.g. marking to minors) present.

This recent move by the Justice Department could have far reaching implications in states where recreational marijuana is legal. There are thousands of jobs that could be lost depending on the decisions prosecutors make going forward. These are the kinds of good paying jobs that the Trump Administration is very fond of. Furthermore, millions of dollars are also at stake. The prosecution of recreational marijuana in states where it is legal could cause current businesses to close up shop and prevent new business from entering the market, which could have a negative impact on the economy.

At this point in time, nothing is quite clear and all we really have is a cloud of grey.