How the Jeff Sessions Pot Ruling Could Play Out in 2018
Days after California’s first new adult-use pot shops opened their doors this week, Attorney General Jeff Sessions announced he would allow federal prosecutors to crack down on marijuana operations in states that have legalized marijuana.
His decision overturns an Obama-era Justice Department policy, set in motion by the Cole Memo, that instructed prosecutors to make pot their lowest priority in legal weed states. While the Obama administration’s decision was lauded on both sides of the aisle, the opposite is true of Sessions’ announcement. The backlash so far has been sizeable and bipartisan, splitting the GOP and bolstering Democrats and others who favor legalization.
Speculations abound over how Sessions’ new decision might impact the nascent legal weed industry in California and the thriving, lucrative industries that already exist in the five other states that have legalized pot over the last half decade.
What might this mean for the future of weed in 2018 and beyond? To help sort through this potentially chaotic new territory, we’ve compiled the best observations from experts on some surprising, unintended consequences of Sessions’ announcement.
1. Federal prosecutors might choose to keep their distance from state-legal weed, despite Sessions’ decision.
Tamar Todd, the Drug Policy Alliance’s senior legal affairs director, told the Washington Post it’s not likely U.S. attorneys in legal pot states will start “busting down the doors of marijuana dispensaries” tomorrow. Todd is quoted in the piece explaining how federal attorneys rely on cooperation with state authorities for many drug cases, and that there are plenty of illicit drug operations for them to focus on already.
Todd’s overall message was that it would be unwise on many levels for federal prosecutors to start attacking states’ legal pot industries, and the prosecutors likely know it. Any feds who went after state-legal weed would be isolated, the Post piece notes, because “such a crackdown would produce an outcry from both Democrats and Republicans, in addition to state government and law enforcement officials.”
Colorado’s democratic governor, John Hickenlooper, also said it’s unlikely Sessions’ decision will send hoards of prosecutors after his state’s incredibly lucrative pot operations—at least not right away.
According to a New York Times piece by Harlie Savage and Jack Healy, Hickenlooper “expressed skepticism that United States attorneys would want to siphon resources from other prosecutions so they could close a marijuana dispensary operating under state regulations.”
Colorado’s Republican Senator Cory Gardner, chair of NRSC, put an ultimatum out to Sessions in response to his pot decision:
“I will be putting a hold on every single nomination from the Department of Justice until Attorney General Jeff Sessions lives up to the commitment he made to me in my pre-confirmation meeting with him. The conversation we had that was specifically about this issue of states’ rights in Colorado. Until he lives up to that commitment, I’ll be holding up all nominations of the Department of Justice,” Gardner said. “The people of Colorado deserve answers. The people of Colorado deserve to be respected.”
2. California will likely join forces with other pro-pot states to stand up for the weed industry.
The states where pot is legal have heavy incentive to protect their pot businesses, because, as the industry has already proven, legalization brings with it staggering tax revenues, cash flow, jobs and other benefits. California alone is set to collect $1 billion in taxes this year via retail cannabis.
California Lt. Gov. Gavin Newsom has vowed to encourage cooperation between states with legal cannabis laws, and said to the New York Times: “This brings states together around issues of freedom, individual liberty, states’ rights... all of the principles that transcend red and blue.”
Newsom said in a separate statement, “Today, Jeff Sessions and the Trump administration destructively doubled down on the failed, costly and racially discriminatory policy of marijuana criminalization, trampling on the will” of voters.
California may be poised to designate itself a “sanctuary state” for pot, following the model of its designation as a sanctuary state for immigrants against deportation. In response to Sessions announcement, Assemblyman Reggie Jones-Sawyer (D-Los Angeles) has redrafted an earlier proposal of Assembly Bill 1578, which would prevent state and local agencies from assisting federal drug enforcement agencies in targeting the state’s cannabis industry without a federal court order.
Jones-Sawyer said in a statement to the Sacramento Bee:
“The impacts of this ill-conceived and poorly executed war [on marijuana] are still being felt by communities of color across the state. The last time California supported the federal government’s efforts, families were torn apart and critical state resources were used to incarcerate more black and brown people than ever before in the history of our state.”
California State Attorney General Xavier Becerra has been reaching out to the Department of Justice on the issue, and told Sacramento Bee he has not ruled out a lawsuit to “protect the state’s laws.”
“We’ll do whatever we must to make sure that California’s laws are obeyed,” Becerra said.
Authorities in Colorado, Oregon, Washington and other states with cannabis legalization laws have also made statements to indicate they will stand by voters and protect their in-state marijuana industries.
3. More skittish cannabis investors might pull out, and a pot stock sell-off has already begun. But many cannabis investors are activists for the industry who were there prior to the Cole Memo, and they're not going anywhere.
The cannabis investment firm Poseidon Asset Management was managing investments in pot more than six months before the Cole Memo came out in 2013. Attorney Cristina Buccola, whose practice focuses on the pot industry, says in a Forbes article that Sessions’ memo has not impacted her clients. “This is not causing [investors] to turn away from these investment opportunities,” she told Forbes. “None of the projects have been put on pause.”
Forbes also quotes an email from Ryan Ansin—a cannabis investor, president of the Family Office Association and managing director of Revolutionary Clinics—noting that Sessions’ memo doesn’t impact the laws. Pot was already federally legal, and continues to be federally illegal, “and informed investors know that,” Ansin says.
4. The political, economic and social effect of Sessions' decision might boost the Dems and tip the scales in Congress to legalize pot at the federal level.
A growing majority of Americans think pot should be legal in some form; 61 percent think it should be legal for adult use, according to the most recent Pew Research Center polling, out this week.
Even Republicans hate Sessions’ pot announcement, and the GOP is split apart in its wake. This is one of many reasons Paul Waldman gives in his Washington Post article, “Why Jeff Sessions’s marijuana crackdown is going to make legalization more likely," arguing that the backlash to Sessions’ decision could spell doom for Republicans and prohibitionists. "A backlash could help more Democrats get elected, and push elected Democrats to more unambiguously support legalization,” he writes.
Public opinion is so far away from backing Sessions and the Trump administration’s attempt at reversing marijuana legalization progress that Republicans are in an “awkward position,” Waldman notes. Many have "released outraged statements condemning the decision, but it might not be enough to persuade voters not to punish President Trump by voting them out. ”
In Politico, James Higdon quotes California Republican Dana Rohrabacher in a conference call with five members of the Congressional Cannabis Caucus, arguing that the Sessions announcement is likely to have an inverse effect of turning a states issue into a national priority.
“It’s a big plus for our efforts that the federal government is now aware that our constituents have been alerted,” Rohrabacher said. "We can be confident we can win this fight, because this is a freedom issue.”