On Thursday, January 4, the U.S. Justice Department rescinded the Cole Memorandum. This was a policy drafted almost five years ago by Deputy U.S. Attorney General James M. Cole directing U.S. Attorneys that they should not focus their resources on people dealing in state-legal marijuana in accord with the laws of their states, especially if the states involved have “also implemented strong and effective regulatory and enforcement systems” to complement the legalization.

In principle, Attorney General Jeff Sessions’ rescission of that memo opens the door to the prosecution of marijuana related offenses even if they are intra-state and in accord with the laws of the state. It remains unclear which U.S. Attorneys will walk through that door or how forcefully.

Sessions’ memo says that as to the exercise of their discretion, “prosecutors should follow the well-established principles that govern all federal prosecutions.”

Almost immediately, U.S. Attorney Andrew Lelling of the District of Massachusetts sent an email to the municipal police chiefs in that state telling them that he would “vigorously enforce federal laws in this area” because marijuana is “in fact a dangerous drug, especially to young users.”

Right Wing View

The rightward half of politics in the United States is split on the subject of marijuana use. It has long been a flash point between the libertarian and the traditionalist elements in conservatism.

President Trump himself seemed to take the libertarian side of that old debate during the presidential campaign. In March 2016, a website devoted to the issue of MJ legalization, MerryJane.com, said that “if marijuana legalization is the most important issue in your universe, vote Donald Trump.”

Jeff Sessions, though, has long been known as a war-on-drugs hardliner. Rand Paul, one of the more determinedly libertarian conservatives in Congress, has said that Sessions’ move is constitutionally “questionable” and has demanded that the AG resign.  

There do remain barriers to full-barrel federal enforcement of a prohibition against intrastate marijuana transactions. The most important of these is the Rohrabacher-Farr amendment, a provision added to the omnibus spending bill in December 2014. It prohibits the Department of Justice from using the funds Congress has appropriated to it, to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

The adjective “medical” there is important. In principle, states that have sought to legalize recreational as distinct from medical use could find federal enforcement running roughshod over their intentions.  The Sessions memo rescinding the Cole memo makes no note of a medical/recreational distinction.

Left Wing View

The Mayor of New York City, Bill de Blasio, tweeted Friday, “Sessions’ vendetta against legalized marijuana is an attack on minority communities. We know what the war on drugs does to communities of color. This is a step backward.”

Some on the left are putting a positive spin (positive for marijuana users and sellers) on the likely consequences of the Sessions order. As Politico asks: “Did Jeff Sessions just increase the odds Congress will make marijuana legal?” The idea is that after a few years as a lawful avenue for entrepreneurship in much of the nation, the marijuana lobby now represents an important industry – economically important in many districts, and thus important to their Congresscritters. Sessions’ order might jolt them into pressing hard for full proper legalization instead of just trying to get back to the half-measure represented by the Cole memo of blessed memory.

Sen. Cory Gardner (R-COLO), who claims that Sessions gave him his word (when the now-AG was seeking confirmation for that post) that he would not do what he now has done, blasted the memo from the floor of the Senate Thursday.  Colorado has raised more than half a billion dollars from taxing the industry that Sessions now threatens.

Opinion polls indicate that roughly 60% of the U.S. population now believes that marijuana should be legal. The trend lines over the years have gone steadily that way. Given the generational nature of the divide they are likely to continue going that way: even if one limits the inquiry to Republicans and Republican-leaning independents, 62% of those under 40 years old favor legalizing marijuana use.