I wrote a blog about the excitement on marijuana and immediately doused the hopes and dreams of billions. As of the beginning of 2018, roughly 30 states have legalized Marijuana in some way. If you click on the above link, you’ll see a map. The federal government legalized it somehow, right? Why is ol’ Nick being such a wet blanket? That blog article noted that the Federal Government issued a series of memos with complicated legal effects and blah blah blah something about the “supremacy clause” of the constitution.
If the states, or the people at large, want a different outcome, there is a check to balance that disparity; the people can elect/lobby the federal congress to proceed with the will of the people. There is even a second check to balance this problem, the federal courts. If there is a big problem where the federal government has either made an unconstitutional law, is not following its own laws, or the federal government is following a constitutional law it made but that action produces some sort of injustice, go ahead and sue ‘em. The Courts have your back (in theory).
Why is my short answer getting long and discusses theoretical? It would not make sense otherwise. I told you in the intro that it was complicated and gray. Trust me, this is the short answer. It will continue for just a little longer. Stay with me, here.
The Federal Position
What did the federal government do about pot? It placed marijuana on the Controlled Substances Act, in schedule 1 – the most dangerous drugs with no accepted medical benefit (please don’t shoot the messenger on this, I’m just reporting the facts, here). The federal government has never taken pot off that list of illegal drugs. It did, produce a memo, however.
The Cole Memo, as it has become known (The link takes you to a PDF of the actual memo). What’s that you say? A memo does not sound at all like a federal law? You’re correct, on that. It isn’t a federal law. The federal government, as the only true sovereign of this land (States and Indian Tribes are “quasi-sovereign”), has the authority to decide how it enforces laws where it is not exactly spelled out in a law how the government is supposed to enforce that law. This is called Executive Discretion or Prosecutorial Discretion. Cole was the Attorney General of the United States. The only boss the Attorney General has, directly, is the US President. That’s pretty high up on the food chain.
The Attorney General is the boss of all the United States Attorneys (the title for, among other things, federal prosecutors). So, the boss basically told everyone underneath him to leave marijuana alone if a state has legalized it. He exercised discretion in standardizing discretion across the board relative to his subordinates. Prior to August 29, 2013 the federal prosecutors were tasked with individually setting prosecutorial goals in light of budget limits. Cole basically just set his staff’s priorities, as far as marijuana goes, for them.
So Where Are We Now?
In that same vein Jeff Sessions, the current attorney general, sent out the Sessions Memo on January 4, 2018, and told everyone under him to basically disregard the Cole Memo (The link takes you to a PDF of the actual memo). He exercised discretion in the opposite direction as Cole. Of the 93 United States Attorneys (and countless assistant United States Attorneys) there are potentially 93 different sets of priorities in prosecutorial discretion piecemealed together.
Confused yet? Good. You are correct to be confused.
Here is a short conclusion: Marijuana is in a gray area because the federal government is supreme over states. The states keep legalizing it. The federal government is being really wishy-washy and is circumventing the correct way to legalize it (through Congress) for a quick shortcut to sidestep political criticism from the well-heeled constituents who opposed to marijuana.
What happens next? Your guess is as good as mine. The federal government is entitled to and legally empowered, to start raiding state-legal marijuana companies and customers.
So What Can Happen?
How much discretion will it use in exercising that power? That’s a really good question. Wish I had an answer for you. I don’t. I will answer that question with a question, though: how much do you trust the federal government to make good decisions and how much are you willing to risk it? Are you willing to risk going to the federal pen over it? Are you willing to lobby Congress with either buying into a lobby group and putting your money where your mouth is or are you willing to lobby congress personally with your own letters, phone calls, emails, and meetings? Or will you quit trying to enjoy marijuana in legal peace because it’s too much of a hassle?
Whatever you do, make sure that you at least know a lawyer you trust to protect your rights. We are in uncertain times, after all.