The Sessions’ Rescission

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

The Sessions’ Rescission

01/12/2018

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Paul Armentano: One of the potential consequences of the administration rescinding these memos is that it’s going to disrupt the aboveground regulated marijuana market.

Paul Larkin: Does anybody have any knowledge or any evidence that these businesses in Colorado and Washington have shuttered their doors since last week? I mean if that were true, then they would have shut down. They haven’t shut down, they are still going.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a rainy Southern California. I write a legal blog called May it Please the Court and have a book out called How to Get Sued. My co-host Bob Ambrogi is out today.

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Well, on January 4, 2018 this year Attorney General Jeff Sessions rescinded a key Obama era policy that allowed states to regulate their own legal marijuana. This announcement came days after the new legalization measure for recreational marijuana took effect in California. While many states have decriminalized or legalized marijuana use, the drug is still illegal under federal law.

But today on Lawyer 2 Lawyer we are going to discuss Attorney General Jeff Sessions efforts to rescind the Department of Justice’s Cole Memo towards state legal marijuana, the impact on state law that has had — that has marijuana legislation and how this announcement will impact marijuana litigation and the marijuana business.

So joining us today is returning guest Paul Armentano. Paul is Deputy Director of NORML, which is the National Organization for the Reform of Marijuana Laws, and he is a Senior Policy Advisor at Freedom Leaf, Inc., the marijuana legalization company. He is the co-author of the book Marijuana Is Safer: So Why Are We Driving People to Drink?

Welcome to the show Paul Armentano.

Paul Armentano: It’s good to be here Craig. Thank you for having me.

J. Craig Williams: And our next guest is Paul Larkin. He is the Senior Legal Research Fellow for The Heritage Foundation’s Meese Center for Legal and Judicial Studies. In 1996-1997 Mr. Larkin served as the counsel for the Senate Judiciary Committee and Head of the Crime Unit for Senator Orrin Hatch, who was then the Panel’s Chairman. He has written about today’s topic for The Heritage Foundation.

Welcome to the show Paul Larkin.

Paul Larkin: It’s my pleasure to be here. Thank you for having me.

J. Craig Williams: Well, Paul Armentano, let’s start with you, can you give a quick summary of the Cole Memo and what it is that Attorney General Sessions has just done.

Paul Armentano: Sure. Well, let’s be clear the Attorney General on Thursday didn’t just rescind the Cole Memo; he rescinded all Obama era memos that had to do with marijuana policy and marijuana law enforcement. This included memos with regard to banking, memos with regard to medical marijuana, and indeed the Cole Memo.

Now, the Cole Memo specifically said this, it essentially was a guidance memo to US attorneys that said it was the preference of the administration that they took a largely hands-off approach to federal prosecution of those individuals who were compliant with the marijuana laws of those states. And as long as those individuals and operators were engaged in activities that were not violating specified federal priorities, like for instance, cultivating cannabis on federal land or exporting marijuana from legal states to other states where marijuana remains illicit, then the federal government was largely content to let those operations engage in those activities in a regulated manner.

By rescinding this memo the Justice Department is largely continuing or even increasing a level of uncertainty that now exists within this industry and is emphasizing the state and federal conflict that continues to exist.

(00:05:11)

J. Craig Williams: So Paul Larkin, a number of states, 29 in all, have adopted medical marijuana laws, seven of which have allowed by legislation, voted in by the people, recreational marijuana. So how does the states’ rights issues play into the Constitution with respect to the current change that we are hearing about from the Department of Justice?

Paul Larkin: For more than a century now we have decided that we are not going to make medical decisions, particularly involving pharmaceuticals by plebiscite. The Pure Food and Drug Act of 1908 recognized that there was an important need to have uniformity across the land and what was and was not a safe medication.

Certainly since the Federal Food, Drug, and Cosmetic Act of 1938, we have had the same determination. In fact, since 1960 or the early 60s, not only is the FDA responsible for measuring the safety of a drug, but determining its effectiveness.

In other words, for quite some time now we have consistently decided that the pharmaceutical, the biochemical and the medical questions involved in what drugs are safe and effective are not subject to a vote. We have left them to the Federal Food, Drug, and Cosmetic Association.

So the idea that the state somehow has the right to decide what drugs it is going to be able to allow to be distributed to its people flies in the face of 110 years of history.

J. Craig Williams: Paul Armentano, what’s your take on states’ rights versus the medical marijuana issue that the federal government is taking right now?

Paul Armentano: Well, first let me say it’s a bit hard to fathom that a group like The Heritage Foundation that proclaims to be based upon the principles of free enterprise, limited government and individual freedom would support a move by the administration that undermines all three of those principles.

In reality, marijuana is illegal federally because it was classified by members of Congress in 1970 as a Schedule I prohibited substance, which means by definition Congress says that cannabis possesses the highest potential for abuse of any controlled substance available, that it is so unsafe for healing consumption that it could not be administered safely even within a hospital setting. In that it has no accepted medical use in the United States.

Outside of Congress, the American people don’t believe that that decision passes the smell test anymore. And while this reversal by the Attorney General may further some uncertainty in the short-term, it does very little in the long-term to alter the progress and momentum that we are having at the state and local level.

In fact, just 24 hours after the administration made this decision the House of Representatives in the State of Vermont voted to legalize the possession and cultivation of marijuana by adults. And in Oklahoma, Governor Mary Fallin announced that in June the public of Oklahoma will be deciding on the issue of medical marijuana in that state. So clearly our momentum is continuing to move forward.

J. Craig Williams: Paul Larkin, is it a decision of the Congress or was it a decision of the Food and Drug Administration, as you have indicated, that we are relying on, how did it get listed as a Schedule I narcotic?

Paul Larkin: That was a decision that was made by Congress in 1970, not the FDA.

J. Craig Williams: Well, let’s take a look at how these Obama era policies have come into play and Sessions’ announcement to terminate this. Paul Larkin, is Trump essentially turning over every Obama rule of regulation that he can find and is this part of that, or is this a concentrated effort to take on the states and battle out the issue of who gets to regulate marijuana?

Paul Larkin: President Trump hasn’t said anything to my knowledge since the Attorney General made his announcement on Thursday. It’s unlikely the Attorney General made that without first telling people in the White House. That’s not the sort of decision you make without telling the people in the latter facility about what’s going on. But the fact that President Trump has been quiet may simply mean he is waiting to see what happens. It’s not uncommon for politicians to let others make decisions and then see if it’s favorable, they will join on, if it’s unfavorable, they will oppose it.

(00:09:52)

Congress has been doing that for quite sometime in fact, ever since 1996. Marijuana is illegal under federal law, but many states have decided they want to have a medical marijuana program or now a recreational marijuana program. Congress hasn’t reexamined the issue and said, no, you shouldn’t be allowed to do that. In fact, it’s very possible that at least in some of the states the reason they adopted these measures is they thought there would be struck down under federal law, which therefore would allow the politicians in each state to claim that they got a benefit for their state, yet it’s entirely cost free to them because federal law is going to strike it down.

So the fact that a lot of states have done this in the teeth of a federal statute that is unquestionably constitutional is not in any way an indication that there is a longstanding or now longstanding opposition to federal law. Plus, to the extent the public knows about this problem, they may not be fully aware of all the risks. After all, marijuana was first outlawed under federal law in 1937 when FDR was President and the Controlled Substances Act of 1970 was passed when Richard Nixon was President. Well, guess what, science has advanced a great deal since then and there is more evidence now that long-term marijuana use is harmful than there was before.

One of the benefits, if perhaps not the principal benefit of what the Attorney General did last week, is make this an issue that Congress now has to debate, because that’s where this debate should be conducted, with the advice of the Food and Drug Administration.

J. Craig Williams: Paul Armentano, is that where this is going to play out in Congress or is it going to play out in the courts? Where do we see the states’ right issue heading?

Paul Armentano: Well, I do agree that this move by the Attorney General’s Office may create a sense of urgency among members of Congress who in the past did seem content to sort of let this untenable divide between the state laws and the federal laws simply coexist.

It is clear that that cannot go on indefinitely and there are now multiple bills pending in Congress and both the US House and the US Senate that would rectify this issue, that would explicitly and once and for all say that marijuana policy and the decision whether or not to regulate the adult use of marijuana or the medical use of marijuana is a decision that is left solely up to the discrimination of the individual states.

So certainly we think it would be a positive if one of the consequences of this change in these Obama era policies is to kick-start members of Congress from revisiting this issue. As Paul said, this is an issue that frankly should have been revisited quite a long time ago and for whatever reason members of Congress have been hesitant to do so despite the fact that 64% of Americans now say marijuana ought to be legal for adults, over 90% of Americans say that medical marijuana ought to be legal, and 75% of Americans say that regardless of how they feel about marijuana, this is a decision that ought to be left up to the individual states.

J. Craig Williams: Paul Larkin, what do you see the future bringing for us? Does this change, this announcement mean that there will be more enforcement of pot laws on a federal level? Here in California we have just issued approximately 400 permits for businesses to conduct retail marijuana sales and other testing and other types of operations. How is that going to affect on these businesses that are opening up?

Paul Larkin: Well, I think the Attorney General has decided that the best way to try to reconsider the policy is to let people know at the outset that he is reconsidering the policy. I mean, after all it’s far better in a circumstance like we have now after we have had many years in which effectively the federal government has declined to investigate or prosecute these cases for the Attorney General to say, first, withdrawing and rescinding all the memos that said that this may be something that the federal government will leave alone.

Second, I am going to give local US attorneys authority to decide how big a problem this is in their district versus other problems.

But third, we are not going to necessarily go down the same road either that the past administrations have or the people fear will take. Will there be some prosecutions? If you have large-scale marijuana trafficking from one state to another then yes, that’s going to happen.

(00:14:46)

In fact, I think Nebraska brought a suit in the Supreme Court of the United States against Colorado saying that effectively Colorado was allowing marijuana to seep over into Nebraska, where it’s illegal. If you have people trying to buy marijuana in Colorado and then sell it for an even greater profit in Nebraska, the federal government is going to look into that problem and probably bring charges against people because it’s illegal in Nebraska and you are transporting stuff from state A to state B in an unlawful manner.

So will there be prosecutions? It may. I don’t think it’s going to happen in the near future because the federal government has now said we have a different policy and they are going to let that sink in. When they will actually start bringing them, that depends on the facts of each case.

J. Craig Williams: Well, before we move on to our next segment we are going to take a quick break to hear a message from our sponsors. We will be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams and with us today is returning guest Paul Armentano, Deputy Director of NORML, the National Organization for the Reform of Marijuana Laws, and Paul Larkin, Senior Research Fellow for The Heritage Foundation’s Meese Center for Legal and Judicial Studies. My co-host Bob Ambrogi is off today.

We have been discussing Attorney General Jeff Sessions’ efforts to rescind the Department of Justice’s policy toward state legal marijuana.

Paul Armentano, what effect will this have on the businesses in the 29 states or so that have in one form or another legalized pot?

Paul Armentano: Well, in the short-term it may have very little effect. These businesses and the individuals involved in these establishments are well aware that marijuana remains illegal under federal law and the US attorneys, despite the Cole Memo and other memos, of course always had the discretion to go after and prosecute egregious violators of the federal law.

As Paul said earlier, if someone is engaging in behavior aware where, for instance, they are exporting cannabis from a legal state to a state where marijuana remains illegal, those actions were always or have always been prosecutable under federal law, and in fact, the Feds have made those sort of prosecutions.

So it is not as if rescinding the Cole Memo suddenly made it open season on these enterprises. Theoretically, they always could be targeted; some of them have been targeted in the past, we just hope that the US attorneys continue to use sound discretion, and if they go after any players, they target bad actors rather than trying to target both good actors and bad actors to try and send some sort of chilling effect.

J. Craig Williams: Paul Larkin, the federal government rules and regulations right now on marijuana prevents the federal banking system from dealing with anybody in the pot business. How are these states and these businesses expected to be able to operate if they can’t do any banking?

Paul Larkin: You have to keep in mind that there are two different things going on here. One is the fact that this is an activity that’s illegal under federal law, so it’s not surprising that the federal government is interested in making sure that activities that violate federal statutes don’t wind up continuing to grow.

And secondly, as a practical matter, ironically one of the ways of keeping businesses small, making it just say mom-and-pop stores as opposed to Marijuana, Inc is to not change any of the banking laws. Right now the people who want to have the banking laws changed probably are people who would like to make a great deal of money in this business. Part of the problem I think is we have relied too much on private parties to be involved in the distribution of this.

(00:19:54)

I think one way to minimize any of the harms from this is to follow the model that we now have in the alcoholic beverage area. States like Virginia have ABC Stores Alcoholic Beverage Control Stores. They are the ones who are responsible for the distribution of distilled spirits. You can buy beer and wine at a grocery store, but if you want whiskey, you have to get it at an ABC Store. That might eliminate some of the problems that will result from having large-scale commercial distribution of marijuana, but I don’t even see anybody discussing that issue and maybe one of the benefits of what happened last week is people will now have to address that issue.

J. Craig Williams: Paul Armentano, what’s your take on the banking law issue?

Paul Armentano: Well, clearly again it speaks to this conflict between state and federal law, and it really undermines I think the goal of the majority of the public and many state and local politicians that want to see these commercial activities regulated. They want that outcome because they want these commercial activities to be transparent, to have these transactions be taxed, and to have the proprietors involved. These state licensed businesses, they understand that that kind of regulated aboveground market is preferable to driving these activities back to the underground market where the primary players in these behaviors are drug dealers and cartels.

And what’s really frustrating is that one of the potential consequences of the administration rescinding these memos is that it’s not going to disrupt the marijuana market, it’s going to disrupt the aboveground regulated marijuana market and it’s going to drive these activities back into the shadows and that’s simply not a preferable outcome to most Americans.

Paul Larkin: Can I ask one question in that regard?

J. Craig Williams: Jump in.

Paul Larkin: Does anybody have any knowledge or any evidence that these businesses in Colorado and Washington have shuttered their doors since last week? I mean if that were true, then they would have shut down. They haven’t shut down, they are still going. You may not see as many people invest in future businesses, but if the businesses are still selling today, they are going to still sell tomorrow, unless and until the government brings criminal prosecutions I suppose.

And as I said earlier Paul, in response to one of the initial questions, I said the short-term impact of this so far remains to be seen, because many of these players, if not all of these players, are certainly aware that their activities are in violation of federal law, but again, if the purpose of this memo is to create uncertainty and to potentially create a chilling effect by prosecuting one or two or three high profile players, well, we can certainly guarantee that that is going to thin the market or curb the market.

It may even discourage the state agencies that are regulating these practices and licensing these practices, they may get out of the regulation business altogether, which would certainly throw the market largely into chaos.

J. Craig Williams: Well, Paul Larkin, there’s been an argument by those in favor of the loosening of pot laws that the federal government ought to be going after the opioid epidemic, which is lot worse they claim than whatever dangers that marijuana causes. What’s your sense of that kind of age-old argument they should be out catching other criminals?

Paul Larkin: You know when I hear that argument what I am reminded of is the response that then Senator Obama made to Senator John McCain towards the end of their presidential campaign. When the economy started going south in a big way in 2008 John McCain said, oh, well, maybe we should stop the campaign in order to deal with this problem. President Obama responded, a President has to do more than one thing at a time and so anybody who wants to be President has to be able to do the same.

Well, a nation has to be able to deal with more than one problem at a time and the fact that we have other problems doesn’t mean we shouldn’t address this one. There are severe concerns about potential long-term harms to adolescents, for example, from marijuana use. We shouldn’t drop our concern. We shouldn’t forget about the problem. We shouldn’t ignore that it’s there just because we have another problem going on simultaneously.

Paul Armentano: I would just like to add, I think regulating marijuana for adults, putting it behind the counter, making these transactions transparent, licensing businesses to engage in these activities as opposed to relegating these behaviors to black market drug dealers, that is addressing the problem, that is acknowledging that we don’t want marijuana, for instance, to get in the hands of young people.

(00:25:08)

It is acknowledging that despite a century of criminalization of cannabis, marijuana is here to stay. It’s enjoyed responsibly by tens of millions of Americans, that’s why you and I are having this discussion today. That’s why eight states have moved to regulate the adult use of marijuana and 30 states now acknowledge the therapeutic use of cannabis by statute. It’s because we want to keep the public faith and we want to regulate cannabis accordingly and we recognize that criminalization has failed to do either one.

Paul Larkin: Right now the states don’t sell alcohol to minors either and yet no minor seems to have any difficulty acquiring it.

Paul Armentano: So are you advocating we then no longer have age restrictions for alcohol or would you acknowledge those are preferable?

Paul Larkin: What I was saying was we prohibit alcohol from being sold to minors, but they can still get it. I grew up in New York City and if you had the money and weren’t wearing diapers, you could buy beer. So the idea that simply because we are regulating a product minors won’t get a hold of it doesn’t hold water.

Paul Armentano: Of course it does. Let’s look at our history of cigarette use in this country. Cigarette use by young people is at an all-time low and it has been dropping precipitously for years. That’s not because we criminalized or prohibited the adult use of tobacco; it’s because we had a commonsense enforcement policy, we regulated it out of the hands of young people and we had public service announcements that warned young people about the risks of its youth. That sort of legalization, regulation and taxation works far better than criminalization.

Paul Larkin: The Attorney General did us a big favor by saying that these decisions shouldn’t be made by the Justice Department, they should be made by Congress in consultation with the FDA. We should thank him for what he did.

With respect to trying to compare what happened with cigarettes, et cetera, well, cigarette use has gone down among minors because we have been able to explain to them that cigarette use is going to kill them. I am not saying that marijuana use is going to kill them, but marijuana use on a long-term basis is going to have some serious problems. I think we need to make sure that minors and others are aware of that.

And I think we need also to talk more about the associated harms that don’t seem to come up in this discussion at all, which is like the problem of drugged driving. It’s a terrible problem. We don’t see it being discussed in any of the states where they are engaged in legalization debates and I think it needs to be.

I work at The Heritage Foundation and people could contact me there.

J. Craig Williams: Great. And Paul Armentano, your final thoughts and your contact information.

Paul Armentano: Sure. Well, I would just say that if Jeff Sessions wishes to build a time capsule that will transport him back to the failed drug war policies of the past, he is welcome to try and do so. But the American people have clearly rejected these sort of flat earth policies and arguments and they have made it clear that they wish to move in a different direction.

Now the ball is squarely in the court of Congress and it is up to them to amend federal law in a manner that comports with the rapidly changing cultural and legal status of marijuana.

If your listeners want to join NORML in this fight, they are welcome to look us up online at  HYPERLINK “http://www.norml.org” www.norml.org.

J. Craig Williams: Great. Gentlemen, thank you both for being on the show today. You made some excellent topics that are worth a lot of consideration for our listeners. Thank you for listening. And that brings us to the end of our show. If you like what you heard today, please rate us in Apple Podcasts.

This is Craig Williams, thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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