Is Attorney General Sessions Finally Ready to Let Go and Move On, or Will Congress Need to Make More Permanent Moves to Keep the Trump Administration in Check?
The U.S. House of Representatives passed a $1.1 trillion government spending deal last week that will keep the government up and running through the end of September 2017. The budget bill explicitly excludes any funds for the Justice Department to spend fighting states that have legalized medical marijuana.
In an inexplicable and highly controversial move, however, President Trump added a signing statement to the appropriations bill which he signed into law; writing that he “will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.” Trump targeted a number of other provisions with similar language.
Trump, apparently (assuming he actually read the statement), wants to leave open the possibility that he may decide to ignore the medical marijuana restriction that the House approved. It’s not clear if this is a typical Trump scare tactic intended to help ensure that medical marijuana businesses are operating strictly within state law, or if he is leaving the option open for Sessions to go after medical marijuana businesses at some uncertain point in the future.
Of course, Trump’s statement makes absolutely no sense since the Rohrabacher-Blumenauer (formerly Rohrabacher-Farr) amendment is also federal law. What’s more, if the Trump administration does attempt to go after state medical marijuana programs Trump would not only incur the wrath of the states, but he would also incur the wrath of the 309 Members of Congress that voted for the bill. The U.S. Congress hates to have their power ignored by a president, regardless of party affiliation.
What’s more, Trump would also be asking for yet another humiliating defeat in the courts. The U.S. 9th Circuit Court of Appeals, for example, already ruled, unanimously, on the Rohrabacher-Farr amendment, arguing that the Justice department cannot prosecute people for medical marijuana if they are in compliance with state laws. The Court stated unequivocally: “Section 542 [of Rohrabacher-Farr] prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws…”
The Need for Permanent Protections
Clearly, majorities in both the Congress and the country have repeatedly registered their support for medical marijuana. The most recent national poll shows that a whopping 93% of Americans now support the legalization of medical marijuana. The 2017 spending deal is consistent with this support. In 2015, the Rohrabacher–Farr amendment passed 242 to 186 with the support of 175 Democrats and 67 Republicans. In 2014, the amendment passed 219 to 189.
Unfortunately, this amendment needs to be renewed with the budget each year—which is not at all comforting to those patients who rely on medical marijuana for relief. This lack of permanent support also discourages cannabis business owners and investors alike, as well as those non-marijuana related businesses and institutions (e.g. banking) that have or could have considerable economic interests tied to cannabis businesses.
“Medical marijuana patients and the businesses that support them now have a measure of certainty,” said Oregon Congressman Earl Blumenauer. “But this annual challenge must end. We need permanent protections for state-legal medical marijuana programs, as well as adult-use.”
What About the States that Legalized Recreational Cannabis?
A recent Quinnipiac University poll shows 71 percent of voters are against the Justice department cracking down on those states that have legalized cannabis for recreational purposes. A CBS News poll on April 20 found an identical level of support. Only 36 percent of Republicans support a federal crackdown, while Democrats remain completely opposed.
The U.S. Congress, on the other hand, has yet to pass a bill or amendment specific to recreational cannabis, and the 2017 appropriations bill is no different. There was an amendment in 2015, the McClintock-Polis Amendment, that was written to extend the same protections to recreational marijuana that now cover medical marijuana, but it failed by a narrow vote in the House: 206 to 222.
Of course a lot has changed since then, particularly following the November 2016 elections. It is entirely possible that a recreational marijuana amendment would now draw significantly greater support. “We do feel we have the votes in the House when we have a process that allows us to bring that amendment forward,” Colorado Congressman Jared Polis recently
told Rolling Stone. “We were very close last time, and we’ve been focused on a number of representatives from states where it wasn’t legal before and now it’s legal, so now their constituents want them to act.”
Thus far, however, Congress has yet to act to protect recreational cannabis. Is it possible the Trump administration will intervene? It’s possible. But the reality is that it’s not at all likely. Trump sees himself, above all, as a negotiator. Indeed, he wrote the book on negotiation: The Art of the Deal. And he often uses threats and fear to get what he wants. As a negotiator, he also hates the idea of not having options. Everything must be “on the table” in Trump’s world (including nuclear weapons, apparently). To understand him, therefore, it’s far more important to pay attention to his actual interests rather than his positions or words. And, clearly, it’s not in Trump’s interests to go to war with two-thirds of the states or the Congress.
What’s more, Attorney General Jeff Sessions appears to be following his boss’s lead. No doubt, Jeff Sessions hates marijuana. But he also likely recognizes the enormous support for marijuana across the country, and the considerable political and legal hurdles he would encounter if he attempted to crack down. So, instead of taking action against marijuana, he’s using subtle threats and fear in a desperate attempt to keep the cannabis sector in check. The key here, as with Trump, is to pay attention to what he does. As Sessions recently told Colorado Governor John Hickenlooper when he asked about recreational marijuana in his state, “You haven’t seen us cracking down, have you?”
Sessions will undoubtedly continue to use his platform to speak out against marijuana, as he told the Governor he would. Sessions, Hickenlooper explained, “feels strongly that more people smoking more marijuana, or doing any kind of drugs, is unhealthy for the country and he wants to make sure that’s going to be a constant refrain when he speaks and when he talks…”
What is equally clear, moreover, is that the Attorney General also has a great many other, far more significant priorities on his plate. “He’s got his hands full,” Hickenlooper said, “heroin, methamphetamines, cocaine—other things that are even more significant.”
Are the Facts on Cannabis Finally Starting to Penetrate the Washington Bubble?
Nevertheless, the lack of clarity around cannabis laws in this country is both frustrating and, ultimately, given the enormous benefits of cannabis, counterproductive for the country as a whole.
A number of politicians and bureaucrats in Washington, D.C. do seem to be slowly waking up to the remarkable realities of cannabis, including: (1.) the surprising number of health benefits, (2.) that cannabis is not a gateway drug, (3.) that cannabis can help curb America’s opioid epidemic, (4.) that cannabis is in no way physically addictive—virtually anything can become psychologically addictive to certain people, (5.) that cannabis legalization can cripple the drug cartels, (6.) that cannabis legalization can reduce crime and violence, (7.) that cannabis legalization can make our roads safer, (8.) that cannabis legalization can reduce prison costs, and, finally, (9.) that cannabis legalization can significantly increase tax revenues (to the tune of $28 billion nationwide).
These evidence-based facts are clearly lost on the Trump administration, however. But its really the legislature that has the power to legalize. And, thus, the question remains: When will the U.S. Congress find the courage to stand up against special interests, stand up for the truth, and do what’s best for the American people? My guess is that it’s sooner than you think.