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What will be AG Jeff Sessions’ first move on marijuana?

We asked one of the nation's leading drug policy experts to consider the options. Q&A with John Hudak: "There's one thing Donald Trump hates more than anything: it's failing, and failing on a grand stage. He will fail if he tries to have DEA physically shut every cannabis-related business down."

February 8, 2017

A new lawman has come to town, and the marijuana industry could be in for major upheaval.

But just how much change Attorney General Jeff Sessions might impart — and how quickly he’ll address federal marijuana enforcement — remain the multibillion-dollar question.

“It’s not like you could see agents come into every storefront in the United States tomorrow and deal with this. That’s not a reality,” drug policy expert John Hudak said Wednesday.

But if Sessions rescinds the 2013 Cole Memo that established federal guidelines for marijuana enforcement, “It’s difficult for policy makers. It’s difficult for elected officials.”

Because the industry sits uncomfortably in a legal-illegal limbo and has been publicly chastised by Sessions, the future strategy for the Department of Justice under the Trump administration could present itself in stark contrast to the fairly laissez-faire enforcement approach by the Obama administration.
 

The idea of Sessions as the nation’s top law enforcement officer sent chills through an industry that was riding high after a historic 2016 election in which eight of nine states passed medical or recreational measures on their ballots.

Just seven months before word came out Sessions was the prospective AG, he had convened a Senate drug hearing criticizing the U.S. Department of Justice for not taking a stronger stance on the recreational use of what he deemed a “dangerous” drug. It wasn’t the first time that the Alabama Republican expressed his displeasure for cannabis and those who use it.

Since Sessions’ nomination, uncertainty reigned and speculation has run rampant as to whether he would wage a war on marijuana.

On the day of Sessions’ Senate confirmation vote, The Cannabist sat down with Hudak, who is a senior fellow at the independent think tank Brookings Institution and author of “Marijuana: A Short History,” to chat about the likely scenarios that could play out for the marijuana industry after Sessions takes his oath. (Some responses have been edited for clarity and length.)

Priorities and policies

The Cannabist: How quickly could he act on a change in enforcement approach?

Hudak: I can see Jeff Sessions, an hour after taking the oath, rescinding the Cole Memo. I don’t think he’s necessarily going to do that, but he can.

That leaves governors in very difficult places. It does not necessarily create policy change in itself, but what it does is create tremendous uncertainty.

The attorney general, the (U.S. Drug Enforcement Administration), the (Federal Bureau of Investigation), do not have the budget or the manpower to physically enforce the Controlled Substances Act nationwide, so it’s not like you could see agents come into every storefront in the United States tomorrow and deal with this. That’s not a reality. But it’s difficult for policy makers. It’s difficult for elected officials. It’s going to rock the boat around investment and I think any advances that have been made on banking, on security, on real estate, state by state, city by city or whatever.

The Cannabist: What are Sessions’ logical priorities as attorney general?

Hudak: Immigration is going to be pretty central. With the controversy now surrounding the president’s immigration ban for the seven Muslim-majority countries, that is angering the president so much that there is even greater prioritization for immigration then there was for a president who already prioritized it.

I think that’s going to be the most important thing to Jeff Sessions. Drug policy is going to be a part of it, but drug policy is a hell of a lot more than marijuana.

The opioid crisis that we’re facing right now is something that both parties in Congress care deeply about. This is an issue that affects Maine to Hawaii, Florida to Alaska and everywhere in between. I think the fears about the opioid crisis are so salient to Congress, an attorney general is very responsive to what’s salient to Congress and it’s salient across both parties.

Jeff Sessions is not typically seen broadly as an ideal candidate for AG, but I think his history in the Senate makes it more likely that he will have a sensitivity to the needs and wants of Congress.

‘The quickest stab to the heart’

The Cannabist: Hypothetically, if he does decide to enforce federal law, what could that look like?

Hudak: Physical law enforcement is one option.

Of course, the limits to that are federal officials have to do that. They can’t compel state or local officials to help them and so that creates an even bigger manpower task. But beyond that, yeah, filing lawsuits, asking courts for injunctions, asking courts for restraining orders. Stopping state officials from behaving in a certain way. I think it’s going to be tougher for Sessions to do this to (Colorado Gov.) John Hickenlooper or (Washington Gov.) Jay Inslee. I think the states that just approved legal marijuana, to actually stop before it starts, is going to be a much more effective strategy.

If I were advising Jeff Sessions — I’m certainly not — if I was asked to provide the quickest stab to the heart of what you can do, I would say: File an injunction against the eight governors who just legalized medical and recreational marijuana, freezing their systems in place. That includes California, and that’s a killer.

That’s a pretty easy approach. And then you don’t have to expend as much time. You need to use attorneys, deputy attorneys general, assistants to them, but you don’t have to use 10,000 DEA agents to go into all of these states.

(Physical enforcement) would take a true army. You have DEA in every state, FBI also, but some places are easy. So you look at a system like New York or Connecticut that only have a handful of grows, handful of dispensaries. FBI and DEA in those states could probably — pretty easily — step in and shut all of those places down in a day.

You come out to the states with very large medical and recreational marijuana programs — Colorado, Washington, California, Nevada — these become much bigger challenges.

There’s one thing Donald Trump hates more than anything: it’s failing, and failing on a grand stage. He will fail if he tries to have DEA physically shut every cannabis-related business down.

Cannabis in Congress

The Cannabist: Do you see Congress taking any steps on addressing marijuana legalization?

Hudak: I have a lot of respect for (Rep. Jared Polis, D-Colorado, and Rep. Earl Blumenauer, D-Oregon). But I think they are viewing this through some rose-colored glasses, and here’s why: First, the industry is just not that big. It’s bigger than it was. It’s bigger than it’s ever been. It’s still not big.

If having a critical mass was enough to push Congress in the right direction, you would’ve seen medical marijuana legalized several years ago. I don’t think California coming on-line as a rec state does anything to Congress or does anything to an AG. …

You have a Speaker of the House and a Senate majority leader who have no interest in dealing with this and have not offered any pro-reform position on marijuana yet. Those are powerful forces that stop this (reform effort).


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The Cannabist: What about some of the existing legislative riders in place such as the Rohrabacher-Farr amendment?

Hudak: The Rohrabacher-Farr amendment is in until the continuing resolution funding the government expires, which is the end of March. It looks, if I had to guess, like we are going to have another continuing resolution (for another six months).

With all of the confirmation hearings, all of the political battles that have been created by the president, Congress has not gotten to the job of doing regular appropriations and regular budgeting. So we’re going to have another similar resolution.

A provision can be stripped out of that (spending resolution) as it moves forward. My guess is (Rohrabacher-Farr) is not going to be stripped out. … I will say, nothing new is going to get put in.

The Cannabist: If Rohrabacher-Farr stays in, what protections are packaged in that?

Hudak: It prevents DEA from spending money on shutting down state-legal medical marijuana operations. But right now that protection only extends to states within the Ninth Judicial Circuit (Alaska, Arizona, California, Hawaii, Montana, Nevada, Oregon and Washington). The Ninth Circuit ruled that Rohrabacher-Farr was good law.

Now, Rohrabacher-Farr also says that if a medical marijuana operation is violating other parts of the law, it is not covered. If you have someone who is growing 10,000 plants and they have regulations for 5,000, DEA can spend money and shut them down.

There is no protection for (recreational cannabis operations). The licensees who hold dual permits, joint permits, it creates a very difficult space. I think the problem, especially with marijuana cultivators — but it’s true for marijuana dispensaries as well — if DEA comes in and seizes something, they have legal recourse to say, ‘Hey, I can’t be held criminally liable for this.’ But if you destroy a bunch of plants in the process or compromise a bunch of plants in the process, there’s not a ton of recourse to get made whole again around that.

A creative attorney general could go in other states and other circuits and start shutting things down and test the waters of what another federal court might say on this.

Industry objectives

The Cannabist: Is there a silver lining for the marijuana industry?

Hudak: I think if you are in the marijuana industry, there is reason to be more optimistic than two months ago, three months ago. I thought Sessions’ confirmation hearing said a lot to the industry about not rocking the boat too much. … He complimented (Obama administration AGs) Loretta Lynch and Eric Holder. He hates both of them. He could’ve easily punted on this, said ‘You know, there are lot of enforcement priorities that past attorneys general have put into place and I’m committed to going back, looking at all of them and seeing whether they fit with our new priorities.’

Instead, he went out of his way to talk about how enforcement priorities work and to compliment two people he vehemently disagrees with politically, ideologically and, I would guess, personally. He did not have to do that. And that he did it suggests to me that he understands the magnitude of this choice and that it is an issue that cuts across party lines….

Frankly I think almost to a fault, the marijuana industry puffs themselves up as this giant economic force, when they’re absolutely not.

But I think the fact that marijuana policy doesn’t matter to most members of Congress is actually a good thing. Because it also means that even though Jeff Sessions has had rhetoric on this issue that makes the industry squirm and cringe, there are 10 things he cares a lot more about, and that’s a good thing. Sometimes a low priority is a no priority.

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Customers on the left and sales clerks on the right pass “sniff jars” back and forth as they discuss different strains of recreational marijuana at Top Shelf Cannabis on Tuesday, July 8, 2014, in Bellingham, Wash. (Ted S. Warren, The Associated Press)

The Cannabist: What actions could the industry take to preserve itself?

Hudak: The industry needs to get focused. There is infighting within industry. It’s true here in Colorado with different industry groups, among competitors. That’s an important part of capitalism and it’s a healthy part of capitalism. But when you’re facing a possible existential threat, you have to think more about what is important. It’s important to come together and speak as close to one voice as possible.

Most people who don’t live in places like Colorado and Washington — and I would say those two specifically — have no idea what the marijuana industry is like, how it functions, how it’s regulated.

People in Colorado and Washington really understand it, and I think that’s why four years out from this vote, it’s still just as popular as it was on election day 2012.

That’s because the more people understand, the more people know, the less offended by it they are. … The less they see it as the sky is falling. That’s an important information campaign for any policy (supporter).

The Cannabist: Here’s the crystal ball question: What do you think will happen?

Hudak: I think so much time and energy and effort is going to be spent on (immigration) that there wont’be much time for anything else. And two, it is only a matter of time before there’s another terrorist attack in the United States — not necessarily 9/11 large scale, but a shooting like San Bernardino or Orlando or something to that effect. That always creates a new track for any administration.

There are a lot of reasons I believe the administration is going to be distracted from marijuana enforcement. And they longer they’re distracted, the more that this system continues to operate effectively without significant harm and the better off it is — and the lower it drops as a priority.

I think that Sessions is going to have rhetoric on this that is going to be brutal at times. I think it’s going to sound more like Barry McCaffrey and Janet Reno than it’s going to sound like Eric Holder. There will certainly be interventions. There will certainly be enforcement actions that scare the hell out of industry.

But those actions I think will be limited in part compared to the end-of-times scenario that I think some people in the industry feel.

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