Sessions’s Marijuana Enforcement Comments Are Meaningless

Certain sectors of the marijuana law reform community are freaking out about the fact that attorney general nominee Jeff Sessions testified in his Senate confirmation hearing on Tuesday that he “won’t commit to never enforcing federal law” when it comes to the growing number of states that are legalizing cannabis.

But Sessions’s comments are not any kind of indication that he’s preparing a broad crackdown against state marijuana laws and people who are operating in compliance with them.

Here’s why:

A nominee to be the nation’s chief law enforcer has to tell the Senate that they intend to, you know, enforce federal law. That’s the job description of the position they’re applying for. But it doesn’t mean they won’t employ a great deal of discretion on how to enforce those laws once they get into office.

In fact that’s exactly what the current attorney general, who serves an administration known for largely respecting state marijuana laws, did at her confirmation hearing two years ago:

“With respect to the marijuana enforcement laws, it is still the policy of the administration, and certainly would be my policy, if confirmed as attorney general, to continue to enforcing the marijuana laws, particularly with respect to the money laundering aspect of it. Where we see the evidence that marijuana, as I’ve noticed in cases in my own district, brings with it not only organized crime activity but great levels of violence.”  — Loretta Lynch, January 28, 2015 [Emphasis added.]

But of course, once taking office, Lynch continued to uphold the Obama administration’s policy of generally allowing states to implement their own marijuana policies largely without federal interference.

President-elect Trump repeatedly pledged on the campaign trail that if elected his administration would respect state marijuana laws.

Sessions himself has a long history of vehemently opposing cannabis law reform, and it has remained an open question as to whether Trump cares enough about the issue to overrule an attorney general who might want to crack down.

But Sessions, generally a supporter of states’ rights, also said something curious during Tuesday’s hearing: He called the Obama administration’s enforcement guidelines on how states with legal marijuana can avoid federal interference “truly valuable.”

Sessions did add that the guidelines “may not have been followed” in all cases, suggesting that he may end up keeping the so-called Cole memo in place, although perhaps with a mandate that the Department of Justice would more closely track whether states are in compliance by preventing interstate trafficking, use by minors and drugged driving, among other factors laid out by the Obama administration.

And like Lynch, her predecessor Eric Holder and other Obama administration officials, Sessions also acknowledged a “problem of resources for the federal government,” implying that he’s aware that the Department of Justice just doesn’t have enough manpower to shut down medical marijuana businesses in 28 states and counting even if he wanted to.

It is also worth noting that Sessions only addressed marijuana during the hearing when specifically asked about it by two senators; he did not go out of his way to cite the Obama cannabis policy when criticizing examples of what he sees as the current president’s executive overreach in using prosecutorial discretion to not enforce certain federal laws.

Separately on Tuesday, and even before Sessions was asked about marijuana during the hearing, the Trump team gave its first official comments on cannabis since Election Day. In an appearance on Fox News, incoming White House Press Secretary Sean Spicer was asked about the gulf between Trump’s campaign pledges and Sessions’s past cannabis criticisms.

“When you come into a Trump administration, it’s the Trump agenda that you are implementing, not your own,” he replied. “And I think that Senator Sessions is well aware of that.”

Ultimately we still don’t know what, exactly, the Trump administration’s approach to marijuana will be, but recent signals should probably give legalization supporters reason for some guarded optimism.

Photo Courtesy of Allie Beckett.

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