Update: During his confirmation hearing, Jeff Sessions said he would enforce federal law. And if Congress wants marijuana to be legal, it should change the law.
On the campaign trail, President-elect Donald Trump said marijuana is an issue best left to the states, who are increasingly moving to legalize the drug. His choice for attorney general, announced Friday morning, is Alabama Sen. Jeff Sessions, who really, really disagrees with legal weed.
What does that mean for Colorado, where marijuana has been legal for everyone 21 and older since 2012 and, perhaps more significantly, where it’s a billion-dollar industry?
Before I get into marijuana, I should note that Sessions is a controversial choice for attorney general on a number of fronts. Back in the 1980s, a Republican-controlled Senate committee denied him a federal judgeship due to concerns about his views on race and his commitment to civil rights. He’s a hardliner on immigration and a climate change skeptic.
He also reportedly said the Ku Klux Klan was “okay, until he learned that they smoked marijuana.” He said he was joking about the Klan. He wasn’t necessarily joking about the marijuana.
I asked Sam Kamin, the Vicente Sederberg professor of marijuana law and policy at the University of Denver’s Sturm College of Law, how nervous marijuana business owners should be. (How mainstream is marijuana in Colorado? So mainstream that the industry endows professorships. Vicente Sederberg is a Denver law firm that was influential in passing Amendment 64 and that specializes in marijuana law.)
“I would be more nervous than I was before Sessions was named, but anyone who tells you what he’s going to do would be speculating,” Kamin said. “It’s going to depend on what the new administration’s priorities are going to be. People in the industry have been operating with uncertainty for a number of years.”
Things might change. But first, let’s remember where we are.
Marijuana in Colorado and other states operates in the open due to a dispensation from the Obama Justice Department. A letter sent in 2013 reiterated that marijuana is illegal under federal law but said that the feds would focus their energies on things like underage use and trafficking across state lines. In states that set up a rigorous regulatory regime, like Colorado, businesses that comply with state law can be pretty sure they’ll be left alone.
Since then, legal access to marijuana has expanded around the country. In the 2016 election, seven of eight states that had marijuana on the ballot voted to approve access. Florida, Arkansas and North Dakota — states that voted for Trump — approved medical marijuana. More than half the states now have some form of marijuana access.
That political reality will probably have some bearing on how a Trump administration proceeds.
“It makes a crackdown more challenging,” Kamin said.
If the status quo changes under an Attorney General Sessions, there should be some warning.
There doesn’t have to be, though.
“They say clearly (in the letter) that the guidelines don’t create a right and are not a defense to a crime, but they certainly have created expectations,” Kamin said. “A new administration if it were planning to move away from that would need to state so pretty explicitly.”
That could take the form of lawsuit filed against the state of Colorado or cease and desist letters mailed to individual businesses.
Or people could simply be arrested. It’s never stopped being a federal crime to grow, sell and distribute marijuana in any amount.
In a statement, the Marijuana Policy Project called on the Trump administration to respect the will of the voters in the many states that have legalized marijuana and on the attorney general to operate in a way that reflects Trump’s campaign statements.
“We would expect appointees who serve at the pleasure of the president to stick to the president’s position on this subject,” spokesman Mason Tvert wrote. “It would certainly be controversial if Sen. Sessions completely defied the president who appointed him.”
“There is a large and growing sentiment in Congress and among the American public that our federal government should not be wasting tax dollars enforcing failed marijuana prohibition laws,” Tvert continued. “We hope Sen. Sessions or whoever is confirmed as our next attorney general will use federal law enforcement resources to protect our country’s citizens, not to defy the laws those citizens have adopted.”