After years of opposition to marijuana legalization, AG Sessions now has the authority to act against it. But is he too late?

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A store with a window display of marijuana smoking paraphernalia in Adam’s Morgan, Washington, D.C. Photo credit: Alex Seibel

Washington- It has been a little over two years since D.C. voters passed Initiative 71, which made it legal for adults 21 and older to possess up to 2 ounces of marijuana for recreational use, as well as grow a limited amount of marijuana plants and to give marijuana to other of age adults so long as there is no exchange of money for the product.

Despite opposition from Congress’ House Oversight Committee that has successfully prevented the D.C. Council from legislating a regulated legal marijuana market for licensed recreational distributors (dispensaries in the District are for prescribed medical marijuana distribution only), as well as threats of arrest made to local government officials implementing the initiative from committee chairman Rep. Jason Chaffetz (R-UT) the initiative was otherwise allowed to pass into law on February 25, 2015 at midnight, and marijuana related business, and a gray market for marijuana, has taken off since.

But that was under President Barack Obama and his attorneys general, who decided to leave legalization to the states. The Trump administration’s Attorney General Jeff Sessions is an outspoken opponent of legalization and a drug war hawk that favors law enforcement intervention in dealing with drugs. Can Sessions put the legal marijuana industry to an end, and will he try?

Mark Bebawy, age 34, is co-owner of a head shop named FunkyPiece with his cousin and business partner Matt Bebawy. Matt had founded  FunkyPiece as an online retailer in 2012, and Mark decided to get involved in the business after attending D.C.’s first National Cannabis Festival on April 23, 2016, helping Matt establish a brick and mortar location in the Adam’s Morgan neighborhood. Bebawy says that business has been “so far so good.”

In regards to how he feels about the future prospects of their business under the Trump Administration and what he thinks will happen, Bebawy says “that remains to be seen”, due to the contradictory messages sent out by the Trump Administration about plans for addressing drug laws.

“You know, people try to read tea leaves and get a vibe for what they’re about but, this administration, it’s kind of hard to do that,” Bebawy said. In regards to whether Sessions actually can crack down, Bebawy is optimistic.

 

“I feel like, at this point, the genie is out of the bottle, so it is going to be very difficult to clamp down,” Bebawy said.

Trump’s appointment of Sessions to attorney general has been a point of concern for advocates and those involved in the growing marijuana industry across the nation. He had been vocal as  an Alabama Senator in his opposition to the Obama administration’s tolerance of states that legalized marijuana. These concerns were not relieved when White House Press Secretary Sean Spicer stated during a White House press conference on February 23 that he thinks there may be “greater enforcement” of federal marijuana law in regards to state legalized recreational use and sales (while a distinction would be made for legal medical marijuana, which the president supports). Though this all may seem discouraging to those that advocate for marijuana legalization and oppose drug war inspired policy, there are a few reasons why the Trump administration may stay the course that the Obama administration did in regards to leaving legalization under state control.

Morgan Fox, senior communications manager for legalization advocacy group “Marijuana Policy  Project”, is skeptical that the Trump Department of Justice will deviate much from following the Cole Memo, the document written by Obama Administration Deputy Attorney General James Cole advising federal law enforcement to defer to state laws regarding marijuana sales and possession as long as the laws adequately addressed a list of public health and criminal justice concerns. Sessions said in a meeting at the Department of Justice with reporters that the memos were under review, and that he sees “points of value” in the documents that detail enforcement priorities.

Regarding what direction the Trump administration may take, Fox pointed out that Trump called legal marijuana a state’s rights issue during the campaign.

“We’re still not exactly sure what the policy is going to be but Trump had said several times during the campaign and as well as afterwards that he thinks marijuana is a states issue and he supports medical marijuana,” Fox said.

Another reason why Fox suspects that a federal crackdown will not happen is increased support for ending prohibition in Congress.

“We are also seeing an increased push in Congress to end federal marijuana prohibition as well as make several other changes to federal marijuana policy, so if those bills are passed, it really doesn’t matter exactly what the Department of Justice says because marijuana will no longer be illegal federally,” Fox said.

The emergence of the Congressional Cannabis Caucus, a bipartisan group of lawmakers from states that have legalized marijuana, is one such example of increased support for a change in marijuana policy on the hill. Caucus member Rep. Dana Rohrabacher, R-CA, recently admitted to using marijuana to help treat his arthritis while addressing a group of activists from the National Organization for the Reform of Marijuana Laws.

Another Republican, Virginia Rep. Thomas Garrett, has introduced legislation that would have marijuana decriminalized federally, another indication that attitudes regarding marijuana are shifting in Congress away from a favorable view of the War on Drugs.

It may be too early to say whether this increased bipartisan support for marijuana law reform will translate to wins for such legislation this session of Congress. It has, however, caught the attention of a particularly important conservative: Jeff Sessions. Politico revealed that Sessions privately assured senators ahead of his confirmation hearings that he would be respecting the decisions of states that decide to legalize marijuana, including not just senators from states that have legalized the drug, but also states rights advocates like Rep. Rand Paul, R-KY. Even if Sessions has not changed his mind about his disbelief in marijuana legalization and decriminalization, it would seem that he thought it important enough to those who would be overseeing his confirmation to Trump’s cabinet to assure them of his willingness to respect state sovereignty over decisions with which he disagrees.

If Sessions was concerned about how not respecting states rights may negatively affect his standing with lawmakers that would confirm him, then a recent poll from Quinnipiac University may give him pause about choosing his opposition to legal marijuana over states rights to legislate it, even with his confirmation behind him, if he cares about the re-electability of his current boss and his subsequent continued employment as the nation’s top cop.

In the survey, Republicans were the outlier political demographic when it came to the question of whether marijuana should be legal, with 35% in favor and 61% opposed, while a majority of Democrats and Independents were in favor. However, when respondents were asked whether or not they would support a federal law enforcement crackdown on states that have legalized marijuana for medical or recreational use, Republicans joined the other two tracked partisan groups in opposition of a crackdown, with 55% against and only 36% in support. Two caveats in trying to use this survey to predict negative Republican voter reaction to any crackdown on state marijuana laws are that the margin of difference in the answers Republicans gave on the question about respecting the rights of states to legalize marijuana was smaller than that of other groups. Additionally, there were no questions specifically about crackdowns on state recreational marijuana laws versus a crackdown on states with legal medical marijuana; Republicans support doctor prescribed medical marijuana use 85% to 12% against, so there is no way to tell from the data whether attitudes would change if medical marijuana was not at risk.

If Sessions finds his convictions about marijuana still outweighing potential negative public opinion over his policy choices, there is another thing he may factor in that prevents him from acting against state legalization of marijuana and the rapidly growing U.S. marijuana industry: resource allocation.

Fox identified this as a weakness of any Justice Department attempt under Sessions to execute a broad crackdown via federal raids on businesses in a state that has legalized marijuana.

“Fortunately, the administration knows that this is just an impossibility, there just not enough resources without taking resources away from a lot of other much more important issues, and I think the Department of Justice realizes this,” Fox said, referring to remarks Sessions made in an interview Thursday morning.

Sessions, in an appearance on “The Hugh Hewitt Show”, said that while he desires to bring cases against marijuana businesses running afoul of federal marijuana law and that he is still opposed to the legalization of marijuana, that it might be difficult if local law enforcement does not assist (due to the businesses not breaking state or local law).

“It’s not possible for the federal government, of course, to take over everything the local police used to do in a state that’s legalised it,” Sessions said, observing that there were a lot of different separate marijuana businesses, and therefore enforcement targets, in a state like Colorado.

“At the most, I think that what we will see is maybe increased enforcement of federal law against people who are not in compliance with state law, people that are in the illicit market, people that might be abusing the legal market,” Fox said.

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