It's High Time for New Pot Laws

Trevor Burrus

As many expected, Attorney General Jeff Sessions has suspended Obama-era guidance documents pertaining to the federal treatment of marijuana in those states where marijuana has been legalized for recreational use. But Sessions’ move may backfire. A $9.7 billion industry has been thrown into disarray, and the 64 percent of Americans who support marijuana legalization, including half of Republicans, are wondering how and why an unelected federal official essentially overturned the will of the nearly 70 million people who live in states that have legalized recreational marijuana.

It’s time for the millions of Americans who support increased research on marijuana, the relaxation of federal marijuana laws, outright legalization or anything in between to call on their representatives to clarify the relationship between federal and state marijuana laws. It’s time to limit the ability of throwback drug warriors like Jeff Sessions to fight a drug war the people don’t want.

Since Colorado became the first state to allow for the sale of recreational marijuana, United States drug policy has been on shaky and unpredictable ground. The Obama-era memo from the Department of Justice, known as the “Cole memo,” merely allowed states to proceed with their legalization experiments at the sufferance of DOJ officials. That was never a stable ground for courting investment, building an industry or promoting research.

Congress has the power to prevent Jeff Sessions from waging a drug war the people don’t want.

By rescinding the Cole memo, Sessions empowered local federal prosecutors with the discretion to “weigh all relevant considerations” in going after marijuana offenders in their jurisdictions. Such a move, according to Sessions, is part of the DOJ’s mission to “enforce the laws of the United States,” and, since “Congress has generally prohibited the cultivation, distribution, and possession of marijuana,” Sessions views it as his duty to follow Congress’s instructions.

While Sessions is misguided in his antiquated, if not antediluvian, views on marijuana, he’s not wrong that, under current law, Congress has prohibited marijuana use everywhere in the country for any reason. In fact, federal law regards marijuana as one of the most dangerous drugs in the world.

Federal marijuana law goes back to the Marijuana Tax Act of 1937, but the modern prohibition began with the Controlled Substances Act of 1970. That act defined marijuana as a Schedule 1 drug, meaning that it has no accepted medical uses and has a high potential for abuse. Despite advances in our understanding of the medical benefits of marijuana, and despite 29 states having legalized medical marijuana in some form, federal law treats marijuana as dangerous as heroin. In fact, cocaine, which has accepted medical uses, is a Schedule II drug.

That is obviously ridiculous, yet it’s the law. And, as long as it’s the law, Sessions will be allowed to enforce it anyway he wants.

For those who are concerned about the harms of marijuana, federal Schedule 1 prohibition hinders the ability of scientists to study the drug for both its benefits and its dangers. Currently, scientists can legally obtain research-grade marijuana from only one source: the federally authorized marijuana farm at the University of Mississippi. But the supply at Ole Miss has often been inadequate, and officials at the National Institute on Drug Abuse, which controls the supply, have often denied researchers access when they disagree with their methods and aims. Near the end of his term, the Obama administration sought to expand the supply by accepting applications for new suppliers, Attorney General Sessions essentially shut that initiative down by refusing to review applications.

And standing between patients who benefit from medical marijuana and federal prosecution is a small law called the Rohrabacher-Farr amendment, now known as the Rohrabacher-Blumenauer amendment. Since 2014, the amendment has prohibited the Department of Justice from spending funds to interfere with medical marijuana in states where it is allowed. Yet the amendment must be reauthorized with every spending bill, and Sessions has called for the amendment to be repealed. While the amendment made it into the emergency spending bill passed on Dec. 22, its future is uncertain after that stopgap bill expires on Jan. 19.

All of this has to change. Americans don’t agree on much, especially in these times, but the increasing bipartisan support for relaxing federal marijuana laws is one thing that can bring us together. We should not have a federal law that is so wildly divorced from the attitudes of the American people. Until Congress acts, federal marijuana policy will be subject to the whims of the executive branch and old-fashioned drug warriors like Jeff Sessions.

Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and managing editor of the Cato Supreme Court Review.