At the same time that Attorney General Jeff Sessions announced that he was rescinding the Cole Memorandum, which told federal prosecutors to go easy on marijuana cases in states that had legalized the recreational use of pot, he also took a shot at medical marijuana.
Sessions last week also rescinded the Ogden Memorandum of 2009, which instructed federal prosecutors not to pursue cases against medical marijuana patients and distributors who had complied with state laws. In essence, that's the same guidance that was included in the Cole document, which came four years later. The order of the memos makes sense in that medical marijuana started making inroads among the states before recreational marijuana.
That's still the case: In all, 29 states, the District of Columbia, Puerto Rico, and Guam have passed laws allowing the use of the plant for medicinal purposes. An additional 17 states allow for use of marijuana products for medical reasons in limited situations or as a legal defense. Eight states, including Oregon, have legalized recreational use. Of course, that sets up a conflict between laws in those states and the federal government, which still treats marijuana as not just illegal, but among the most dangerous of all narcotics.
The Ogden and Cole memos were meant in part to chart the way through those conflicts for federal prosecutors. The Cole memo, for example, directed prosecutors to focus on "enforcement priorities" — trafficking to states where pot isn't legal, sales to minors, and so forth. The general idea was to give users and producers who followed the laws in their states a bit of assurance that federal agents wouldn't be knocking on their doors.
The U.S. attorney for Oregon, Billy Williams, said last week that the enforcement priorities listed in the Cole memo would continue to be the priorities of his office, but it's unclear if or for how long that stance will satisfy his superiors. In the meantime, a big shadow looms over the fast-growing marijuana industry.
A couple of notes are worth repeating here: First, although this action by the Trump administration will slow the rising tide toward legalization, it will not stop it: Recent Gallup polls suggest that 64 percent of Americans support legalization.
Second, Congress might be able to take steps to blunt the impact of these pronouncements from Sessions. It's not at all out of the question that Congress can act on this issue, which doesn't break down strictly along party lines. In fact, two Republicans — Rep. Dana Rohrabacher of California and Sen. Cory Gardner of Colorado — spoke out last week against Sessions. For these Republicans, marijuana legalization is an issue of states' rights.
Of course, it's the administration's job to enforce legislation that Congress passes. So Congress could get to work on a number of fronts:
• The Rohrabacher-Blumenauer Amendment restricts U.S. attorneys from taking legal action against people who use or produce medical marijuana. (Oregon Rep. Earl Blumenauer is the other sponsor.) The measure was included in the stopgap bill that kept the government running, but it expires Jan. 19. Congress should renew it.
• Rohrabacher has introduced legislation to amend the Controlled Substances Act so that it doesn't apply to people who produce, possess or deliver marijuana in compliance with state laws.
• Congress also should remove marijuana from the list of Schedule I drugs, those drugs deemed to have the highest potential for abuse and no medical use. This designation, which has been ludicrous for decades, also has had the effect of limiting badly needed medical trials and research.
Sooner or later, Congress will repeal the federal ban on pot and will leave enforcement questions (properly) to the states. We can prepare for that day. Or we can resume a particularly futile chapter of this nation's war on drugs. (mm)