Cannabis Chaos: Justice Department Revokes Obama-Era Guidance on Marijuana Enforcement

Today, Attorney General Jefferson B. Sessions announced, in a memorandum to all US Attorneys, the immediate revocation of five Obama Administration policies on federal marijuana enforcement, including Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use, Guidance Regarding Marijuana Enforcement and Guidance Regarding Marijuana Related Financial Crimes. These three Obama-era guidance documents were drafted by then Deputy Attorney General James M. Cole in response to state legalization initiatives.

Two of the rescinded Obama-era memoranda had instructed federal prosecutors to focus their enforcement efforts related to marijuana businesses operating in compliance with state laws and enforcement of marijuana-related financial crimes on eight priorities, such as preventing the diversion of marijuana from states where it is legal to other states and preventing the distribution of marijuana to minors. Sessions’ memorandum enables federal prosecutors to pursue marijuana enforcement based on “all relevant considerations,” including:

  • federal law enforcement priorities set by the attorney general,
  • the seriousness of the crime,
  • the deterrent effect of criminal prosecution, and
  • the cumulative impact of particular crimes on the community.

As we previously noted, the Trump Administration was expected to take a tougher stance on the enforcement of federal drug laws against persons operating in states that legalized marijuana. The Trump Administration issued several signals that policy changes were imminent. For example, in a 2017 signing statement, President Trump rejected the imposition of congressional restrictions on the Department of Justice’s (DOJ) use of appropriated funds for marijuana enforcement. Specifically, the appropriations act that funded the federal government for a portion of 2017 contained a provision aimed at prohibiting the DOJ from taking action against states implementing their own laws authorizing the use, distribution, cultivation or possession of medical marijuana. While continuing appropriations acts did not remove this provision, the Trump Administration’s stance on regarding marijuana was made clear.

Pro-legalization members of Congress promised to fight for the cannabis industry. Senator Ron Wyden (D-OR) said, “Trump promised to let states set their own marijuana policies. Now he’s breaking that promise so Jeff Sessions can pursue his extremist anti-marijuana crusade.” President Trump had said during his campaign that he would leave marijuana policy to states. Senator Cory Gardner (R-CO), said the DOJ announcement “directly contradicts what Attorney General Sessions told me prior to his confirmation. With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states. I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”

This is not the first time that the DOJ revoked Obama-era policies related to drug laws. In a 2017 memorandum to federal prosecutors directing them to pursue the most serious, readily provable offenses and to recommend sentencing within advisory guideline ranges, Attorney General Sessions rescinded policies on mandatory minimum sentences and recidivist enhancements in certain drug cases and guidance on plea negotiations. Other DOJ entities have taken a more hostile enforcement approach as well. The DOJ’s Executive Office for US Trustees issued a 2017 memorandum about marijuana assets, which may not be administered under the Bankruptcy Code, even if the assets are not illegal under state law.

The attorney general’s announcement likely heralds more aggressive enforcement measures. Though the Obama Administration’s guidance did not prevent criminal prosecutions or other adverse actions under federal drug laws, the revocation of such guidance presents those in the marijuana business with increased risks of potential criminal penalties and civil fines. Under both the past and current policies, marijuana and most parts of the cannabis plant remain illegal Schedule I drugs under the Controlled Substances Act.

Although 8 states have legalized recreational use of marijuana, and 29 states, the District of Columbia, Guam, and Puerto Rico permit medical use of marijuana, the Drug Enforcement Agency has repeatedly denied petitions to reschedule marijuana from Schedule I to any other schedule, in part because marijuana does not have an approved medical use.

Benjamin O. Kostrzewa
Benjamin (Ben) O. Kostrzewa advises clients on international trade and related regulatory matters. This includes matters before the World Trade Organization dispute settlement body, subsidy allegations, import proceedings, market access issues, and free trade agreements, countervailing duty proceedings, local content requirements and export restraints. Read Ben Kostrzewa's full bio.

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