For the past several years, the marijuana industry and its customers have been relying on a piece of paper — an Obama-era document known as the Cole memo — to indulge in their business and pleasure mostly without fear of arrest by federal agents.
On Thursday, U.S. Attorney General Jeff Sessions rescinded that document. Observers took it as a sign that a large-scale cannabis crackdown could be on the way.
But could Sessions’s move actually turn out to be good news for legalization supporters?
The development generated immediate and intense pushback from federal and state officials, from both sides of the aisle. And it wasn’t just the usual suspects of the Congressional Cannabis Caucus chiming in. Democratic and Republican House and Senate members who almost never talk about marijuana, except when asked about it, proactively released statements pushing back against Sessions.
Congressman Rod Blum, Republican of Iowa, for example, said that the attorney general’s action inspired him to sign on as a cosponsor of House legislation to let state set their own cannabis laws without federal interference.
Iowa has not legalized marijuana, and only has an extremely limited medical cannabis oil law on its books.
Because of @jeffsessions actions, I’m joining the “Respect State Marijuana Laws” bill. I believe in States' Rights & I’ve seen how cannabis derived medicines can stop seizures in a child, help a veteran cope with pain, or provide relief to a senior with glaucoma. #IA01
— Congressman Rod Blum (@RepRodBlum) January 5, 2018
Not surprisingly, lawmakers who represent state-legal marijuana businesses and consumers who are now at greater risk in a world without the Cole memo are also fired up.
Congresswoman Nancy Pelosi of California, the House Democratic leader, for example, issued a statement in response to the Sessions move saying that Congress should not only continue an existing budget rider that prevents the Justice Department from interfering with state medical cannabis laws but should expand its scope to protect full recreational laws as well.
“Congress must now take action to ensure that state law is respected, and that Americans who legally use marijuana are not subject to federal prosecution,” she said. “Democrats will continue to insist on bipartisan provisions in appropriations bills that protect Americans lawfully using medical marijuana. Congress should now consider expanding the provisions to cover those states that have decriminalized marijuana generally.
Similarly, Democratic Sen. Ron Wyden of Oregon said that “any budget deal Congress considers in the coming days must build on current law to prevent the federal government from intruding in state-legal, voter-supported decisions.”
Republican Sen. Cory Gardner of Colorado took to the Senate floor and issued a threat to block Trump administration nominees over the move.
.@SenCoryGardner on Attorney General Jeff Sessions' #marijuana policy change: "I will be holding all nominations for the Department of Justice. The people of Colorado deserve answers." pic.twitter.com/BnVEkA54ag
— CSPAN (@cspan) January 4, 2018
Likely 2020 Democratic presidential contenders rushed to beat one another to the punch in slamming the Trump administration’s anti-cannabis action.
Not a single member of Congress from either party issued a statement supporting the rescission of the Cole memo.
Whereas the marijuana industry has been operating in a sort of legal gray area under the Cole memo and the medical cannabis budget rider, the Sessions move forces marijuana to the forefront of American politics, where a breaking point may finally be reached.
While in the short-term, Sessions’s move has sent shock and fear through the cannabis community, caused stocks to tumble, spooked investors and gave banks greater pause about opening accounts for marijuana businesses, the disappearance of the Obama-era protections could actually have positive long-term implications.
Yes, DEA agents may raid some businesses. And federal prosecutors might bring some cannabis entrepreneurs to court. People in the cannabis industry could go to prison or have their assets seized.
Those actions could have long-lasting implications negative for those targeted. That’s nothing to take lightly, and no one in the legalization movement wants it to happen.
But by launching a crackdown in any form, Jeff Sessions’s Justice Department could spur a backlash — among the public and from federal, state and local officials whose job-creating, taxpaying constituents are being targeted.
And that could finally force a resolution to to the growing federal-state divide on marijuana that might otherwise persist longer in a murky gray area under the Cole memo and annual appropriations riders.
If Congress passes legislation to change cannabis’s status under federal law in the next year or two, legalization supporters may have Jeff Sessions to thank for it.
Sen. Jeff Merkley “Disappointed” That Democrats Blocked His Marijuana Banking Amendment
One of the U.S. Senate’s foremost champions for marijuana law reform says he is “disappointed” that fellow Democrats recently joined with Republicans in blocking his amendment to increase cannabis businesses’ access to banks.
Last month, Sen. Jeff Merkley (D-OR) offered a measure that would have shielded banks that open accounts for state-legal marijuana businesses from being punished by federal regulators for that activity even though cannabis remains illegal under federal law.
While the Senate Appropriations Committee had approved two similar amendments in previous years, the panel this time voted to table the measure with a bipartisan vote of 21 – 10, with ranking member Sen. Patrick Leahy (D-VT) and other Democrats who normally support marijuana reform objecting on procedural grounds.
“I was disappointed,” Merkley said in an interview with BuzzFeed editor Ben Smith on Monday. “We had passed this twice before.”
“We need to establish banking for cannabis because a cash economy is an invitation to money laundering and theft and cheating your employees and cheating on your taxes [and] organized crime. All bad.”
“I accompanied the owner of a company who had $70,000 in his backpack to pay quarterly taxes,” Merkley recounted in response to the cannabis banking question on Monday, which was suggested to BuzzFeed by Marijuana Moment’s editor. “It’s so bizarre going down the freeway and talking about how they have to pay their employees in cash, have to pay their suppliers in cash. It’s a bad system.”
“Everyone should agree: States’ rights on this. Let the states have an electronic system to track what these businesses are doing, not billions of dollars floating around like this.”
— Ben Smith (@BuzzFeedBen) July 16, 2018
Despite his disappointment with the measure being blocked, the Oregon Democrat, who is believed to be considering a 2020 presidential run, said that his colleagues “had a fair point to make on the policy front” in tabling the measure.
At the time, Leahy argued that spending bills such as the one before the committee should be kept “free of new controversial policy riders” and that a more appropriate forum would be an authorizing committee that sets banking laws.
“It wasn’t existing policy and therefore it was new policy,” Merkley acknowledged in the new interview.
But he pointed out that there are few other avenues available for senators to pursue the issue.
“Here’s the thing. Normally we could take these policy bills like I was putting forward [and] you could put it on the floor of the Senate as an amendment to something,” he said. “In 2017, outside of the budget process, not a single amendment was considered on the floor of the Senate… This is the end of the Senate really as a deliberative body on policy. So if you’re blocked in the Appropriations Committee, and you’re blocked on the floor, then it’s very hard to put ideas out there and say, ‘Hey vote on this. This matters.'”
The House Appropriations Committee also defeated a cannabis banking amendment last month.
See the video of Merkley’s remarks at about 19:15 into the clip below:
— AM to DM by BuzzFeed News (@AM2DM) July 16, 2018
Photo courtesy of Senate Democrats.
County Officials From Across The U.S. Push Feds To Reform Marijuana Laws
An organization representing the 3,069 county governments across the U.S. is calling on the federal government to allow states to legalize marijuana without interference.
“The federal government should largely be responsible for regulating and enforcing against illegal drug trafficking, while respecting states’ right to decriminalize cannabis under state law,” reads a new platform plank adopted on Monday by the National Association of Counties (NACo).
“NACo urges Congress to enact legislation that promotes the principles of federalism and local control of cannabis businesses with regard to medical and adult-use of cannabis under state law,” a related provision says. “Congress should allow and encourage state and local governments to enact and implement cannabis laws, regulations, and policies that appropriately control production, processing, sales, distribution and use, as well as promote public and consumer safety, should they choose to decriminalize and regulate cannabis under state law.”
The group is also calling on the federal government to make moves to expand banking access for marijuana businesses and broaden research on cannabis’s medical effects.
The county officials’ new stance is similar to resolutions adopted last month by the U.S. Conference of Mayors.
“The United States Conference of Mayors urges the White House, U.S. Department of Justice and the U.S. Drug Enforcement Administration to immediately remove cannabis from the schedule of the CSA to enable U.S. federal banking regulators to permanently authorize financial institutions to provide services to commercial cannabis businesses, and increase the safety of the public,” one of the mayoral group’s positions says.
Marijuana Moment supporters on Patreon can read the full text of the new NACo marijuana positions below:
Border Patrol Reflects On Feds’ Friendlier Historical Approach To Marijuana
Canada’s decision to legalize marijuana nationwide has stoked concerns that its citizens traveling across the U.S. border will risk temporary detention or even permanent visitation bans if they fess up having ever consumed cannabis, or even working in the industry.
Enforcement officials have told reporters that there’s no travel policy change in light of Canada’s end of prohibition, emphasizing that it remains illegal to bring cannabis across the border under federal law. Violating the policy “could potentially result in seizure, fines, and apprehension,” U.S. Customs and Border Protection (CBP) said in a recent statement.
But let’s take you back to a simpler time, courtesy of CBP.
“Did You Know… Marijuana Was Once a Legal Cross-Border Import?”
That’s the title of a 2015 blog post published by the federal agency—which seems to have gone mostly unnoticed until now—recalls how cannabis was historically recognized as a legal import by the government.
“One hundred years ago, the federal government was not overly concerned with marijuana, the common name for the Cannabis sativa L. plant,” the feds’ post reads.
Through the mid-1930s, the plant flew under the government’s radar, despite the fact that “several state governments and other countries had banned the drug.”
“The U.S. government hesitated, in part because therapeutic uses of Cannabis were still being explored and American industry profited from commercial applications of hemp fiber, seeds and oil.”
That all changed in the decades to come—first with the 1937 Marihuana Tax Act, which imposed taxes and regulations on cannabis imports, cultivation, distribution and possession, and then with full prohibition under the Nixon administration.
Up until that point, the Customs Agency Service (later rebranded as CBP) didn’t put too much stock in pot. Just before the Marihuana Tax Act passed, the agency described its cannabis policy here:
“Marihuana may be cultivated or grown wild in almost any locality. Inasmuch as this drug is so readily obtained in the United States, it is not believed to be the subject of much organized smuggling from other countries.”
It seems like pretty basic supply and demand, but federal prohibition changed the equation. Suddenly, marijuana wasn’t “so readily obtained” in the country—and even simple possession carried serious criminal penalties—so the legal supply dried up. In the absence of legal access, criminal organizations swooped in to meet the demand for marijuana in the United States.
“Today, however, marijuana trafficking is a major concern of CBP, Immigration and Customs Enforcement and the Drug Enforcement Administration,” CBP wrote. “Well over 3 million pounds of ‘pot’ were confiscated at our borders in 2011, making an impact on this multibillion-dollar illegal enterprise.”
The more you know!
Photo courtesy of Gerald Nino, U.S. Department of Homeland Security.