UPDATE: Congress gave the Rohrabacher-Blumenauer amendment a temporary reprieve after this piece was originally published, extending protections until Dec. 22. Rep. Earl Blumenauer, D-OR, responded by saying, "[T]wo weeks is not enough certainty," and adding, "Congress must act to put an end to the cycle of uncertainty and permanently protect state medical marijuana programs -- and adult use -- from federal interference."
In all the budget and tax negotiations frantically being hammered out on Capitol Hill, one small amendment that might get lost in the shuffle could have huge ramifications. The Rohrabacher-Blumenauer amendment was originally set to expire on Friday (see update above), which would open the door for Attorney General Jeff Sessions to do what he's been hinting he wants to: Launch a federal war on states that have partly or completely legalized marijuana use.
The Rohrabacher-Blumenauer amendment, originally passed as the the Rohrabacher-Farr amendment in 2014, bars the Department of Justice from using federal funds to prosecute people buying or selling medical marijuana in states that have legalized it. It's a popular bipartisan amendment that protects 46 states, but there have been concerns about whether it will be renewed after Sessions exerted pressure in May on Congress to let the amendment die.
Sessions argued that the DOJ's hands need to be untied when it comes to prosecuting marijuana dispensaries, "particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime." There is, of course, no evidence that marijuana use is contributing to the opioid crisis and, in fact, there's a significant link between legalized medical marijuana and a decrease in opioid overdoses.
The amendment survived, despite Sessions' pressure, through a couple rounds of budget debate in Congress this year, but as Ames Grawert of the Brennan Center for Justice told Salon, "Every time, there’s sort of a dance around whether it will actually get cut this time or not." It’s reasonable to be at least "a little concerned," Grawert said, that Sessions' pressure will eventually convince congressional Republicans to dump the amendment.
This will-they-or-won't-they game is why Rep. Dana Rohrabacher, a California Republican, and a bipartisan group of 24 other lawmakers have introduced the Respect State Marijuana Laws Act of 2017, which would prevent the federal government from prosecuting any marijuana users, growers or distributors who are in compliance with state laws.
“You have booming economies in several states, some of whom allow the recreational use of marijuana but many also just for medical purposes, and no real data linking that to a public safety problem," Grawert said, noting that the Brennan Center objects to using federal resources to prosecute people or break up thriving economies without any data to show that doing so would improve public safety.
In March, Sessions argued that marijuana use is "only slightly less awful" than heroin addiction, making it clear that his priority was to aggressively prosecute marijuana users and distributors. He's been stymied by both the Rohrabacher-Blumenauer amendment and a memo issued by then-Deputy Attorney General James Cole that discouraged the Justice Department from prosecuting people who were following state-level marijuana laws. The obvious concern here, however, is that Sessions would seize upon the first political opening available to reinvigorate the federal war on pot.
As Sadie Gurman of the AP reported in August, Sessions tried to create such an opportunity by convening a Task Force on Crime Reduction and Public Safety that he reportedly expected would give him legal cover to reverse the Cole memo. Instead, as Gurman reports, they came up "with no new policy recommendations to advance the attorney general's aggressively anti-marijuana views."
Sessions clearly hasn't given up hope of creating a pretense for a crackdown on legal weed, however. As BuzzFeed's Dominic Holden reported on Twitter, Sessions is holding a roundtable discussion on drug policy at the hyper-conservative Heritage Foundation. No press will be allowed to ask questions. Heritage has been aggressively fighting back against the bipartisan efforts to relax marijuana laws, falsely claiming that pot is more addictive and dangerous than alcohol. In fact, the opposite is true: Marijuana is less addictive than booze and significantly less dangerous.
In November, Sessions was hauled in front of the House Judiciary Committee to answer questions about the Donald Trump-Russia scandal, but as is typical with these sorts of hearings, a lot of congressmen wedged in to ask some off-topic questions. Rep. Steve Chabot, a Republican from Ohio, asked Sessions about the DOJ's marijuana policies.
"Our policy is the same, really, fundamentally as the Holder-Lynch policy, which is that the federal law remains in effect and a state can legalize marijuana for its law enforcement purposes but it still remains illegal with regard to federal purposes," Sessions said.
If that sounds comforting, it shouldn't. The DOJ approach to marijuana under the Obama administration was all over the place. On one hand, the Cole memo helped dial back federal prosecutions of marijuana. On the other, Justice under Attorney General Eric Holder did what it could to ignore the Rohrabacher-Farr amendment, prosecuting marijuana dispensaries in at least one prominent case that was overturned in court. The fact of the matter is Obama's administration was pretty bad for a long time on marijuana, a fact that Sessions is now eager to use as political cover to do more of the same.
Ultimately, the legal limbo around this question has to end. There's already a surprising amount of bipartisan support for medical marijuana in Congress. A recent CBS poll shows that 61 percent of Americans believe recreational marijuana should be legal, while 88 percent support legalized medical marijuana. Seven out of 10 Americans believe the federal government should not interfere with marijuana sales in states where it's legal. Ideally, Congress should simply pass a bill removing marijuana from the controlled substances list. In lieu of that, a bill compelling the Department of Justice to respect state marijuana laws will finally clarify the murky legal status of people who sell or use pot in states where getting high is not a crime.