The Law Protecting Legal Weed States From the DEA is About to Expire
Recently, Jeff Sessions inspired a fresh bout of fear that the DEA might soon crackdown on states with legal medicinal and recreational weed with the expiration of Rohrabacher-Blumenauer Act.
In America’s earliest days as a country, it’s first conflict was a borderline civil war known as the Whiskey Rebellion. Just a few years after the Revolutionary War was won, a federal tax on Whiskey made the beverage so expensive to produce, and an angry mob of 7,000 protesters marched on Congress in Philadelphia to burn it to the ground. More than 300 years have passed since the Whiskey Rebellion, yet the government is still threatening to be a buzzkill under Attorney General (AG) Jeff Sessions; this time for legal marijuana.
During a press briefing on November 29th, the AG the announced 12 million in grants to state and local law enforcement agencies for a broader effort against illegal substances. The announcement was focused on the opioid crisis, but when asked by a reporter about cannabis, Sessions inspired a fresh bout of fear that the DEA might soon be kicking in some dispensary doors (they haven’t been known to knock).
“It’s my view that the use of marijuana is detrimental, and we should not give encouragement in any way to it,” Sessions said to reporters in Washington, adding, “We’ll be working our way through to a rational policy, but I don’t want to suggest in any way that this department believes that marijuana is harmless.
One of the linchpins currently blocking Sessions from taking action is part of the federal budget known as the Rohrabacher-Blumenauer amendment (a.k.a. Rohrabacher-Farr amendment),. The budget provides the DOJ with money to enforce the law, but this added rule prevents them from spending any of it to enforce federal marijuana laws in states that have established their own medicinal regulations.
Last spring, Sessions pleaded with Congress to eliminate the restrictions, which lawmakers will have a chance to do in the coming budget vote scheduled for December 8th – though at the current rate of dysfunction Congress is operating it could be pushed back.
“I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of a historic drug epidemic and a potentially long-term uptick in violent crime,” Sessions said a letter he sent to Congress in May, “The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”
Even President Trump aired some complaints after signing the provisions into law for the 2017 budget, “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed,” the president’s objection read.
All of which has to lead to the belief that the government could be coming for your weed. Sessions could be preparing for a crackdown by eliminating the barriers put in place by the previous administration.
That policy, known as the Holder Doctrine, named for former AG Eric Holder, scaled back drug enforcement for non-violent and non-cartel related crimes to allow states to go ahead with their plans to legalize.
“We’re already seeing the breadcrumbs being laid,” Says Justin Strekal, Political Director for the National Organization for the Reform of Marijuana Laws (NORML).
In February 2017, Cully Stimson, the Chief of Staff and Senior Legal Fellow at the conservative-leaning think tank, the Heritage Foundation, outlined 11-steps the Department of Justice could take to go after marijuana which now looks more like a checklist he swiped from Sessions’ desk drawer.
A number of these steps have already been taken word for word by the AG. The most concerning part is a recommendation that only a few major lawsuits normally used to go after organized crime need to be filed to scare investors into pulling their cash out of the industry.
“We’re talking about an Attorney General who, throughout his career has supported the death sentence for those who distribute marijuana,” Says Strekal, the real question, he says, is where cannabis falls on the DOJ’s list of priorities?
Under Sessions, it’s technically open season on anyone committing even the slightest drug offense. As more Trump appointed judges take their seats in courtrooms across the country we could see a crackdown, but currently, that doesn’t seem to be the reality.
The DOJ is now too focused on fixing the total mess caused by pharmaceutical companies to focus resources on weed even if it was allowed to spend the money. When testifying before Congress in November, Sessions said that the current regulations would remain unchanged and his own Taskforce on Crime Reduction and Public Safety recommended no changes be made according to documents obtained by AP.
So it turns out, that the fear of a government crackdown on weed might be just that: fear. Tamar Todd, Director of the Drug Policy Alliance’s Office of Legal Affairs, thinks it’s a lot more of a ‘wait and see’ situation.
“It’s challenging to change the course the states have been going in,” She says, “a very large number of states are invested in legalization laws and regulatory schemes.”
With eight states across the country having voted to implement recreational legislation, more than half have approving some form of medical program and another long list of states in the 2018 election voting to legalize; the momentum is just too great to stop.
“There’s no putting the toothpaste back in the tube,” says Leland Berger, an attorney out of Portland, Oregon, where recreational cannabis has been legal since in 2015, “At this point, we’re also talking about publicly traded corporations.”
Last week, more than 60 congressmen and women signed a letter to the leaders of the House and Senate asking that the restrictions on enforcement be left in place. Even the Ninth Circuit Court of Appeals, which oversees many of the states in the west that have legalized, ruled that the DOJ has no right to interfere.
“The part that’s troubling,” Says Todd “is that marijuana isn’t part of the conversation for reducing the rate of overdose.” What Todd is referring to is some studies conducted this year which show the potential of marijuana to combat addictions. Among veterans, a group considered twice as likely to develop opioid addiction; those results have caused nearly a quarter of them to choose marijuana as a treatment.
“[Sessions] exists within his own bubble, and we need to make sure that we burst that bubble,” Says Strekel, “We need to be loud, we need to make sure that Jeff Sessions knows that any action will result in tremendous political blowback.”
That blowback could be just what’s keeping Sessions at bay. A recent poll from Quinnipiac found that 61 percent of Americans support legalization for recreational purposes while 94 percent approve of its medical use. Only 20 percent would support the federal government cracking down on states that have already legalized.
“What the Attorney General doesn’t recognize,” says San Francisco attorney Henry Wykowksi, “is that states that have legalized and regulated cannabis are very satisfied with the way those programs are run and they seem to be beneficial.”
In recent years, some cannabis companies in California have been fighting civil asset forfeiture cases in which law enforcement can legally seize property without filing charges. The cases against Harborside Health Center, Berkeley Patient’s Group, and Shambhala dispensaries were all dismissed with Wykowksi’s help.
As things stand now Sessions could certainly try to enforce his own version of a rapidly changing legal reality. But as each day passes he also faces more obstacles. So it’s likely you could sit back spark one up and relax, but don’t get too comfortable.