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Congressional Lawmakers Push Attorney General To Issue ‘Overdue’ Marijuana Guidance, Saying Ongoing ‘Legal Limbo’ Is “Unacceptable’



It is “unacceptable” that the Department of Justice has yet to reissue federal marijuana enforcement guidance to discourage interference in state cannabis programs, leaving Americans in a “legal limbo” despite promises to update the policy, two Democratic congressional lawmakers said in a new letter to the attorney general.

Writing to Attorney General Merrick Garland on Wednesday, Congressional Cannabis Caucus co-chairs Reps. Earl Blumenauer (D-OR) and Barbara Lee (D-CA) said the department should “correct this oversight and reissue a memo making clear DOJ’s limited resources will not be spent prosecuting those acting in accordance with state or Tribal law.”

It’s been over six years since then-Attorney General Jeff Sessions rescinded the previous Obama-era Cole and Wilkinson memos that generally directed prosecutors not to interfere with state and tribal marijuana laws, respectively. And making matters “especially concerning,” it’s been over a year since Garland signaled that updated guidance was forthcoming, they said.

“While we appreciate the historic steps the Biden-Harris Administration has taken to pardon federal simple possession marijuana offenses and begin the formal review of marijuana’s schedule under the Controlled Substances Act, it is unacceptable that more than half of Americans living in jurisdictions with legal marijuana markets are left in limbo without public guidance to prevent unjust prosecution of those complying with their state’s or Tribe’s regulations,” the lawmakers wrote.

“Law enforcement, state regulators, small businesses, patients, and everyday Americans are caught in the ambiguity of the federal-state gap, made worse by the delay in reissuing the Cole and Wilkinson Memoranda protections,” they said.

Blumenauer and Lee also noted that, for years, they’ve “urged DOJ to act on this commonsense protection,” and they’ve been “consistently disappointed in meetings with agency leadership and DOJ prosecutors on existing policies.”

“As congressional allies in the work to undue the harms of the misguided war on drugs, we request answers on the delays in reissuing these protections:

    • Given President Biden and Vice President Harris’ public position that no one should be incarcerated for marijuana possession, what steps is DOJ taking to ensure state- or Tribe-legal actions are not prosecuted?
    • What is the DOJ’s specific timeline for reissuing the Cole and Wilkinson Memoranda protections?”

“While Congress works to address the impacts of the federal-state gap on cannabis policy, the urgency of issuing public guidance addressing federal prosecution of those who comply with state and Tribe cannabis laws should inform DOJ’s actions,” the letter concludes. “We look forward to your response and to the long overdue reissuing of these critical, fiscally responsible, and common-sense protections.”

When Garland was asked about the issue during a Senate Judiciary Committee hearing last March, he said that it was “fair to expect” that the updated marijuana policy would be “very close to what was done in the Cole Memorandum.”

At an earlier hearing in June 2022,  the attorney general said the Justice Department was still “examining a wide range of issues that relate to marijuana and its production, sale and use, and we intend to address these issues in the days ahead.”

While there’s still no formal guidance in place, the federal policy of non-interference in state cannabis programs has generally persisted over the recent administrations. But advocates want to see the memo reissued nonetheless for added protections.

In the meantime, the Drug Enforcement Administration (DEA) is working to complete its review into cannabis scheduling after the U.S. Department of Health and Human Services (HHS) recommended moving it from Schedule I to Schedule III of the Controlled Substances Act (CSA).

Blumenauer separately laid into HHS Secretary Xavier Becerra last week over the “political malpractice” that is the president’s failure to end marijuana prohibition. The top federal health official promised to deliver that message to the White House, but also deferred responsibility for delays in an ongoing review into cannabis’s scheduling status to DEA.

The congressman, who has pressed DEA to go further than rescheduling and fully remove cannabis from the CSA, emphasized that “we are missing an opportunity for the American people” by not acting on bolder reform.

Lee told Marijuana Moment that she opposes simple rescheduling, arguing that the incremental reform could set the country back “another 50 years” on the path to federal legalization.

At a White House meeting this month with people who received marijuana pardons under President Joe Biden’s proclamations, Vice President Kamala Harris also expressed frustration with how long it is taking to complete the marijuana scheduling review that President Joe Biden directed in 2022 and urged DEA to move “as quickly as possible.”

Meanwhile, Blumenauer is separately seeking answers from HHS over the agency’s reported request for a legal opinion on the implications of possible marijuana rescheduling from the Justice Department.

Read the letter from Blumenauer and Lee to the attorney general on the marijuana memo below:

GOP Senators Tell DEA To Reject Marijuana Rescheduling, Arguing It Would Violate International Treaties

Photo courtesy of Philip Steffan.

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