The election of Donald Trump and the appointment of Jeff Sessions as the U.S. Attorney General has led to concerns over the future of state sanctioned medical and adult-use cannabis markets. Sessions is widely known for his opposition of marijuana legalization in any capacity, notably stating that marijuana is “only slightly less awful” than heroin and that “good people don’t smoke marijuana.” Most consider state regulated adult-use markets as the markets most at risk of federal enforcement. This is because U.S. Department of Justice (DOJ) enforcement priorities for adult-use markets are spelled out in the Cole Memo, which has no legally binding affect and could be deviated from by the DOJ tomorrow. Conversely, the Rohrabacher-Farr amendment protects medical marijuana with the force of law.
Congress passed the Rohrabacher-Farr amendment in an omnibus spending bill in 2014 after six failed attempts over the prior decade. The amendment prohibits the DOJ from using federal funds to prevent states “from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Cannabis advocates rightfully hail the amendment as a great success in marijuana reform and in protecting the future of medical marijuana, but the hard-fought amendment is not nearly as concrete as other laws. This is because Congress must renew the amendment annually in order for it to remain effective.
While Congress has renewed the amendment twice since its original passage and the amendment is currently in effect through September 2017, the future of the amendment is unclear under the Trump administration. On June 13th, 2017, news outlets revealed that Sessions, in a letter from early May, urged Congress not to renew the amendment. In his letter, Sessions said, “it would be unwise for Congress” to limit DOJ prosecutorial discretion of medical marijuana industry participants “in the midst of an historic drug epidemic.” Sessions fails to mention that the drug epidemic is due to deadly opiate addiction or research that shows a decrease in opiate deaths in states with medical marijuana programs.
Additionally, when Trump signed the omnibus spending bill containing the amendment, he included a signing statement that reads, “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.” This statement could act as a safety net if Trump chooses to recall his earlier promises that he is “100 percent” in favor of medical marijuana and intends to leave the issue to the states.
Sessions’ letter and Trump’s signing statement could indicate a reversal of that promise and instead, could be the beginning of the changing of the tides within the Trump administration concerning marijuana enforcement. In an email to WaPo, John Hudak, author of Marijuana: A Short History and a Deputy Director at the Brookings Institute, put it best when he criticized the Sessions letter. The letter “should make everyone openly question whether Trump’s rhetoric and the White House’s words on his support for medical marijuana was actually a lie to the American public on an issue that garners broad, bipartisan support.”
Only time will tell how this all plays out but for the time being, Rohrabacher-Farr lives to see another omnibus spending bill. Concerned parties can take solace in the bipartisan support mentioned by Hudak. The Rohrabacher-Farr amendment passed with bipartisan support, the House of Representatives recently created the Cannabis Caucus with bipartisan participation, and a recent Quinnipiac poll found that 94% of the public supports medical marijuana. Hopefully our elected representatives in Congress will heed the public’s opinion, rather than scare tactics from Jeff Sessions, and continue the trend towards protecting medical marijuana, and in time, towards more sweeping federal marijuana reform.