Medical marijuana states cautiously optimistic Congress will resist Sessions

Published: Aug 23, 2017, 11:20 am • Updated: Aug 23, 2017, 12:40 pm

By Paige Winfield Cunningham, The Washington Post

Congress will likely renew protections next month for state medical marijuana laws — but pro-pot lawmakers and advocates are still watching nervously in case Attorney General Jeff Sessions launches a last-minute sabotage campaign.

For nearly three years now, Congress has maintained a policy prohibiting the Justice Department from using federal funds to prevent states allowing medical marijuana – which now number 29 plus the District of Columbia – from carrying out their own laws.

The amendment, offered by Reps. Dana Rohrabacher, R-Calif., and Earl Blumenauer, D-Ore., will soon expire unless Congress renews it. And it seems likely lawmakers will include the language in a spending bill keeping the government open past Sept. 30, with one possible hiccup – intervention by Sessions, who’s famously known for his abhorrence to cannabis.

Sessions, who prepared a speech in April whose initial text (later revised) called marijuana “only slightly less awful” than heroin, apparently asked congressional leaders to undo the state medical marijuana protections in a letter that became public in June. In that letter, Sessions argued the Rohrabacher-Blumenauer amendment would restrict the DOJ from enforcing the federal Controlled Substances Act.

“I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime,” Sessions wrote. “The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”

Yet Sessions is up against a Congress filled with an unprecedented number of pro-pot lawmakers from a record number of states where it’s legal.

Last November’s election brought sweeping victories for the pro-marijuana crowd: Seven states plus the District of Columbia now allow recreational use after voters in California, Massachusetts, Maine and Nevada approved such measures. And four more states – Florida, North Dakota, Arkansas and Montana – approved medical use laws, making it legal in more than half the states for doctors to prescribe marijuana to patients.

It’s notable that each time the House has approved the Rohrabacher-Blumenauer language, it’s been by increasingly wider margins. The protections for state medical marijuana laws were included with little controversy in the spring spending bill. And last month, the Senate Appropriations Committee passed such protections, offered by Sen. Pat Leahy, D-Vt., by voice vote.

“This is the most sympathetic Congress we’ve ever had to issues of cannabis,” Blumenauer told me.

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Blumenauer said he’s had no concrete assurances yet from GOP leaders that they’ll include the protections in the spending bill they need to pass by Oct. 1 in order to keep the government funded (and in his Arizona rally remarks Tuesday night, Trump suggested he’d be open to a shutdown over funding for his border wall). But Blumenauer is “reasonably confident” the language will ultimately be renewed, barring an intervention by Sessions.

Advocates are also expecting Congress to keep protecting states with medical marijuana laws, even though they’ve been deeply dismayed by Sessions and his past, well-documented opposition to pot.

“I am cautiously optimistic that we are going to retain the protections,” said Justin Strekal, political director for the pro-pot group National Organization for the Reform of Marijuana Laws (known as NORML).

The Obama administration made clear in the 2013 “Cole” memo – drafted by then-deputy attorney general James Cole – that it would mostly avert its eyes from state laws. The document warns U.S. attorneys in all 50 states to let states go ahead with legalization efforts, as long as pot isn’t being made available to minors or in states where it isn’t legal.

For the moment, it’s unclear how hard Sessions will try to combat the legalized marijuana trend sweeping the country (a Justice Department spokeswoman didn’t respond to my questions about his approach). The AG certainly has the power to make life very, very difficult for users and growers of the drug, which remains illegal under federal law.

Most significantly, Sessions could direct U.S. attorneys to go after those involved with recreational marijuana. He could use a process called asset forfeiture to seize money and property from them. He could choose to prosecute anyone involved in the industry.

That’s because Congress has so far rejected the next step, which would be to protect states that allow recreational use. Two years ago, the House defeated by a 222-206 margin a bipartisan amendment from Reps. Tom McClintock, R-Calif., and Jared Polis, D-Colo., to prohibit federal authorities from prosecuting people for use, sale or possession of marijuana in a state in which the drug is legal under relevant state laws.

Yet if Sessions tries to remove pot protections, it’s unlikely to be at the behest of the White House. President Trump said several times during his campaign that legalization should be up to the states, and even at one point expressed support for pot’s medical use.

“The marijuana thing is such a big thing,” Trump said at a campaign rally in Nevada in October 2015. “I think medical should happen, right? Don’t we agree? I think so. And then I really believe we should leave it up to the states.”

One thing’s for certain – in a popularity contest between the president and legalized pot, the pot wins (recent polls show that six in 10 Americans now think it should be legal). Blumenauer was happy to note the reality.

“In the nine states where both Donald Trump and marijuana were on the ballot, marijuana got a lot more votes than Trump,” he told me.

Topics: Dana Rohrabacher, donald trump, Jeff Sessions, Rohrabacher-Blumenauer Medical Marijuana Amendment, Rohrabacher-Farr Medical Marijuana Amendment, states rights