Jeff Sessions (Credit: AP/Andrew Harnik/Getty/Lumppini/Salon)
Attorney General Jeff Sessions’ announcement Thursday that he is rescinding Obama-era guidance to federal prosecutors directing them to take a laissez-faire approach to state-legal marijuana except under specified circumstances (violence, out-of-state diversion, money laundering, etc.) is sending shock waves through the marijuana industry, but its impact is likely to be limited.
That’s because marijuana prohibition is a dying beast, and while the twitching of its tail in its death throes could cause some injury, neither the attorney general nor his minions are going to be able to get that beast back up and roaring again. They are too late.
At least one of them recognized as much Thursday afternoon. Colorado U.S. Attorney Bob Troyer, a Sessions appointee, said within hours that there would be no changes in his office’s enforcement priorities. He would continue “identifying and prosecuting those who create the greatest safety threats to our communities around the state,” he said, an approach “consistent with Sessions’ guidance.”
Sessions’ move comes days after California, the nation’s most populous state, began recreational marijuana sales, joining Alaska, Colorado, Nevada, Oregon, and Washington. Maine and Massachusetts have also already legalized marijuana, with taxed and regulated sales being just a matter of time. Washington, D.C., has also legalized marijuana possession and cultivation, although not sales, and another 21 states allow for medical marijuana.
More states are likely to legalize it this year (although the Sessions move could cause some hesitation at state houses), as even slow-to-act legislators eye marijuana legalization’s ever-increasing popularity. The latest Gallup poll has 64 percent supporting legalization, suggesting that going after legal weed is likely to be a political loser.
Which is not to say that Sessions and the Justice Department can’t do some serious harm. The mere announcement of the move saw marijuana stocks plummet in value Thursday. And unleashed federal prosecutors could attempt arrests and prosecutions of marijuana businesses. Even more dire, they could seek — and likely win — permanent injunctions in the federal courts shutting down state marijuana programs. They do, after all, violate federal law.
Such moves could totally disrupt legal marijuana regimes, shuttering pot businesses and turning off the pot tax revenue spigot, but they can’t end legal weed. And Sessions’ announcement doesn’t mean he has ordered an immediate crackdown; instead, he has signaled to federal prosecutors that they are free to move forward against legal marijuana if and as they wish.
Even if they do, here are four reasons why Sessions’ war on weed is a quixotic quest.
1. The federal government cannot make states recriminalize marijuana.
The federal government can make marijuana illegal under federal law and it likely has the ability to enjoin pot businesses and state regulatory apparatuses from selling, regulating, and taxing marijuana, but it cannot dictate to the states what their marijuana laws should be. In other words, the feds may have the ability to disrupt legal marijuana markets and states’ ability to tax and regulate them, but not to make weed …read more