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It’s High Time for New Pot Laws

Trevor Burrus

As many expected, Attorney General Jeff Sessions has suspended Obama-era guidance documents pertaining to
the federal treatment of marijuana in those states where marijuana
has been legalized for recreational use. But Sessions’ move may
backfire. A $9.7 billion industry has been thrown into
disarray, and the 64 percent of Americans who support marijuana
legalization, including half of Republicans, are wondering how and
why an unelected federal official essentially overturned the will
of the nearly 70 million people who live in states that have
legalized recreational marijuana.

It’s time for the millions of Americans who support increased
research on marijuana, the relaxation of federal marijuana laws,
outright legalization or anything in between to call on their
representatives to clarify the relationship between federal and
state marijuana laws. It’s time to limit the ability of throwback
drug warriors like Jeff Sessions to fight a drug war the people
don’t want.

Since Colorado became the first state to allow for the sale of
recreational marijuana, United States drug policy has been on shaky
and unpredictable ground. The Obama-era memo from the Department of
Justice, known as the “Cole memo,” merely allowed states to proceed
with their legalization experiments at the sufferance of DOJ
officials. That was never a stable ground for courting investment,
building an industry or promoting research.

Congress has the power to
prevent Jeff Sessions from waging a drug war the people don’t
want.

By rescinding the Cole memo, Sessions empowered local federal
prosecutors with the discretion to “weigh all relevant
considerations” in going after marijuana offenders in their
jurisdictions. Such a move, according to Sessions, is part of the DOJ’s
mission to “enforce the laws of the United States,” and, since
“Congress has generally prohibited the cultivation, distribution,
and possession of marijuana,” Sessions views it as his duty to
follow Congress’s instructions.

While Sessions is misguided in his antiquated, if not
antediluvian, views on marijuana, he’s not wrong that, under
current law, Congress has prohibited marijuana use everywhere in
the country for any reason. In fact, federal law regards marijuana
as one of the most dangerous drugs in the world.

Federal marijuana law goes back to the Marijuana Tax Act of
1937, but the modern prohibition began with the Controlled
Substances Act of 1970. That act defined marijuana as a Schedule 1
drug, meaning that it has no accepted medical uses and has a high
potential for abuse. Despite advances in our understanding of the
medical benefits of marijuana, and despite 29 states having
legalized medical marijuana in some form, federal law treats
marijuana as dangerous as heroin. In fact, cocaine, which has
accepted medical uses, is a Schedule II drug.

That is obviously ridiculous, yet it’s the law. And, as long as
it’s the law, Sessions will be allowed to enforce it anyway he
wants.

For those who are concerned about the harms of marijuana,
federal Schedule 1 prohibition hinders the ability of scientists to
study the drug for both its benefits and its dangers. Currently,
scientists can legally obtain research-grade marijuana from only
one source: the federally authorized marijuana farm at the
University of Mississippi. But the supply at Ole Miss has often
been inadequate, and officials at the National Institute on Drug
Abuse, which controls the supply, have often denied researchers access when they disagree
with their methods and aims. Near the end of his term, the Obama
administration sought to expand the supply by accepting applications for
new suppliers, Attorney General Sessions essentially shut that initiative down by refusing to review
applications.

And standing between patients who benefit from medical marijuana
and federal prosecution is a small law called the Rohrabacher-Farr amendment, now known as the
Rohrabacher-Blumenauer amendment. Since 2014, the amendment has
prohibited the Department of Justice from spending funds to
interfere with medical marijuana in states where it is allowed. Yet
the amendment must be reauthorized with every spending bill, and
Sessions has called for the amendment to be repealed. While
the amendment made it into the emergency spending bill passed on
Dec. 22, its future is uncertain after that stopgap bill expires on
Jan. 19.

All of this has to change. Americans don’t agree on much,
especially in these times, but the increasing bipartisan support
for relaxing federal marijuana laws is one thing that can bring us
together. We should not have a federal law that is so wildly
divorced from the attitudes of the American people. Until Congress
acts, federal marijuana policy will be subject to the whims of the
executive branch and old-fashioned drug warriors like Jeff
Sessions.

Trevor
Burrus
is a research fellow in the Cato Institute’s Robert A.
Levy Center for Constitutional Studies and managing editor of the
Cato Supreme
Court Review
.