Jeff Sessions hates marijuana. Hates it, with a passion that has animated almost nothing else in his career. “Good people don’t smoke marijuana,” he has said. He even once said about the Ku Klux Klan, “I thought those guys were OK until I learned they smoked pot.”
He says that was a joke, but even so, it still says something about where he’s coming from.
So if you’re wondering why Sessions has endured the humiliation of being demeaned and abused by President Donald Trump and stayed on as attorney general, one big answer is the policy change he announced this week: He is rescinding an Obama-era directive that instructed federal prosecutors not to prioritize prosecuting businesses like dispensaries in states that had legalized cannabis. Sessions is finally getting the chance to lock up all those hippies, with their pot-smoking and their free love and their wah wah pedals and everything immoral they represent. He’ll show them.
So what happens now? The emerging legal picture is murky, since a lot depends on the individual decisions federal prosecutors will make. The political picture is somewhat clearer: this is bad news for Republicans.
Let’s start with the legal questions. The 2013 Obama administration letter that Sessions rescinded, called the Cole memo, told federal prosecutors that in states that had legalized marijuana, they should use their prosecutorial discretion to focus not on businesses that comply with state regulations, but on illicit enterprises that create harms like selling drugs to children, operating with criminal gangs, selling across state lines, and so on. In other words, prosecutors could still fight the drug trade, but if a state has legalized marijuana and put in place its own regulatory system, they should leave those operating within that system alone.
There’s also a provision in the federal budget known as the Rohrabacher-Farr amendment (now the Rohrabacher-Blumenauer amendment) that forbids the Justice Department from using any resources to interfere with the provision of medical marijuana in states that have legalized it. Right now there are 29 states that have put in place some kind of medical marijuana system, in addition to the eight states (plus Washington) that have either legalized possession of small amounts of marijuana or set up a regulated system for the commercial sale of the drug. The most important is California, which as of the beginning of this year has legalized sales for recreational use.
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