Sessions Backs Down on Legalization

As first reported by Politico, “Attorney General Jeff Sessions has privately reassured some Republican senators that he won’t deviate from an Obama-era policy of allowing states to implement their own marijuana laws.”

Senator Rand Paul revealed that Sessions affirmed his support for “states’ rights on these things.’

Senator Cory Gardner has reportedly talked to several administration officials and has the impression that there will not be a significant change in federal policy toward his state, which has legalized marijuana, nor toward others.

A bi-partisan group of senators from legalization states, led by Elizabeth Warren and Lisa Murkowski have written Sessions urging the Department of Justice to continue a policy of letting states enact such laws, describing them as having “strong and effective regulations for recreational use.”

With eight states having legalized marijuana so far, this means 16 U.S Senators have a direct interest in restraining federal intervention. Of these, five are Republicans—a pivotal number when considering that their party only has a two-seat majority in the Senate. The potential opposition to federal intervention is even deeper and more powerful when considering the senators from states with medical marijuana laws.

There is simply insufficient political support for the Justice Department to significantly interfere with state-level marijuana legalization laws.

This doesn’t mean there won’t be targeted attempts to harass the marijuana industry, particularly in cases that appear to violate the spirit and/or letter of state law. An obvious target of federal law enforcement will be cultivation operations suspected of generating exports to other states.

But as previously argued in this column, recent comments suggesting a counter-revolution have more to do with perception and policy.

There is still grounds for apprehension on the part of local officials and industry executives, although this derives from uncertainty about just who will hold key Justice Department positions. This uncertainty cuts both ways.

While some new justice officials may have rather hawkish, interventionist views about the clash between state and federal policy, others may be supportive of local regulatory frameworks or simply have other priorities.

Early budget forecasts suggest an increase in the Justice Department’s budget, but this is largely allocated toward the administration-wide priority of revving up immigration law enforcement.

However, budget appropriations are one of the single strongest constraints on over-aggressive marijuana law enforcement by the Department of Justice. After all, the federal budget must be approved by the United States Senate.

Not only will legalization state senators oppose funding law enforcement actions that will deprive their states of revenue, they will also oppose other budget requests by the Justice Department in retribution for such plans. This is not a matter of stated positions by such senators, but instead common operating procedure.

U.S. senators have tremendous power, both in terms of their votes and in terms of oversight authority. Efforts to legalize marijuana have never before had such protection in the United States Congress.

Should Attorney General Sessions decide to pursue aggressive anti-marijuana policies at the Department of Justice, it will be a costly and damaging decision that will impede his ability to pursue Trump administration policies in many other areas.