Marijuana industry braces for Sessions appointment
January 9, 2017
Marijuana advocates in Colorado are waiting to see how threatening President-elect Donald Trump's pick for attorney general, Alabama Sen. Jeff Sessions, an avowed pot foe, could be for the industry. They also wonder which Republican position will win out: opposition to marijuana or promotion of states' rights.
Sessions has an anti-marijuana reputation that's left many in the industry fearing the direction he would take enforcement. He's chastised the last two attorneys general for not enforcing federal marijuana laws and said that "good people don't smoke marijuana."
"The jury is still out, but it won't be out for long," said Chris Chiari, a board member and former executive director of Colorado NORML, a marijuana advocacy group.
Sessions' first confirmation hearing before a U.S. Senate committee begins Tuesday, where Chiari expects to learn about the direction the senator would take as attorney general.
Said Denver marijuana advocate and attorney Brian Vicente, "Jeff Sessions is essentially a drug war dinosaur. It was certainly surprising that the big winners on election night were marijuana and Trump."
Also of concern is that the president-elect's stance on marijuana hasn't been consistent, said the attorney.
Years ago, Trump made statements that he thinks all drugs should be legalized. More recently he's been in support of medical marijuana.
Then he said he wouldn't overturn Colorado's legal recreational legislation, though he's not entirely happy about it, said Vicente. "Now he's appointed Sessions, a radical marijuana prohibitionist."
Sessions "buys into the gateway theory, that marijuana is a precursor to, and associated with, other crime," said Chiari. "I'm coming to a more dire conclusion based on what I've seen."
Sessions, from his history, rhetoric and resume, has been an enthusiastic prohibitionist, he said.
Foremost on industry advocates' minds is the "Cole memo," a Department of Justice policy, which originated under former-Attorney General Eric Holder and former-Deputy Attorney General James Cole, that the federal government will not enforce federal marijuana law in states that have legalized it.
"If they make a move to rescind the Cole memo, they will do it quickly," said Chiari. "With those actions the industry should start preparing for some sort of federal engagement."
"Anyone who thinks the Cole memo survives [Sessions'] first day needs to do more research," he said. "We all need to have our eyes open and be ready."
This is also a states' rights issue, which seems like it should make Republicans a natural ally, say advocates.
It certainly would be rare for a presidential appointee to set a policy that flies in the face of what the president wanted, "but we live in unprecedented times," said Vicente.
A worst-case scenario is "the administration could really just come in and take away states' rights, with regard to marijuana," said Ashley Weber, Colorado NORML executive director.
The industry is also concerned that the administration could reschedule marijuana, taking it from a Schedule I to a Schedule II controlled substance, putting it into pharmaceutical company hands and out of reach for regular citizens, said Weber.
Said Chiari, "The challenge is what powers the AG would have to enforce federal laws against marijuana. They would be numerous."
Just 18 months ago Congress passed an amendment that restricts the Department of Justice from spending tax dollars on actions against state-compliant medical marijuana businesses, he said.
But that law is scheduled to sunset in June.
Sessions has had Colorado's marijuana industry in his sights, "which has me very cautious and hoping that Trump keeps his word [about states' rights], though he hasn't kept to it much," said Weber.
Still, as an organization Colorado NORML is remaining cautiously optimistic, she said.
The momentum of four more states legalizing recreational marijuana in the November election will be difficult to turn back, she said. "The word is out, and there's a snowball effect. By 2020 I believe [recreational marijuana] will be legal everywhere."
In Congress now is also a bill that would open up banking for medical marijuana businesses, which has been a major hurdle for the industry, she said.
"For this progress to be turned back would be a turn back to the Reagan administration" — where Weber said Sessions seems to be stuck.
But there is without question a discrepancy between state and federal laws on marijuana, and despite the states that have now legalized recreational marijuana, only four have so far implemented it, said Chiari.
And the policies of the states that have newly legalized recreational marijuana will be heavily influenced by the new attorney general, and certainly by health and human services, he said.
Still, Vicente is doubtful that Sessions' appointment would automatically spell the industry's doom.
"I don't think Sessions has the will or the resources to fully bring back marijuana prohibition," he said.
Vicente's guess is that marijuana could stay largely as it is, with the federal government cracking down on those operating in the "gray areas" — the businesses outside of state compliance.
So his law firm, Vicente Sederberg, has been encouraging its clients to double down on compliance, pay their taxes and be good community members, he said.
In particular it would take a massive amount of federal resources to come after medical marijuana, which is more established and wildly more popular, he said.
In total, 29 states have now legalized medical marijuana.
"Recreational [marijuana] could be a little more in the crosshairs," he said.
In the court of public opinion, medical marijuana has won, said Chiari. "But if we're not careful, we could lose the day on recreational marijuana."
If Sessions does make a shift, it will be to accept medical marijuana, but not recreational, he said.