President Trump Commits to Protect Colorado’s Legal Marijuana Industry

On Friday, April 13th, Senator Cory Gardner (R-CO) announced that President Trump assured him that the Department of Justice’s decision to rescind the Obama-era guidance on marijuana enforcement would not affect Colorado’s legal marijuana industry. President Trump also promised Senator Gardner that he would support a federal legislative fix that takes into account state decisions to legalize marijuana. In turn, the senator lifted holds on all Department of Justice nominees, ending an intra-GOP standoff over the Department’s cannabis policy.

In January, Attorney General Jeff Sessions rescinded guidance that outlined eight marijuana enforcement priorities, heightening the possibility of a federal crackdown in states that legalized recreational and medical cannabis. Pro-legalization advocates feared that Sessions’ announcement granted federal prosecutors broader discretion to pursue criminal charges against marijuana businesses operating legally under state law in states like Colorado, Washington, California and elsewhere. Sen. Gardner immediately responded that he would block all DOJ nominations over the new policy.

On Friday, Sen. Gardner said Trump “has assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all.” White House Press Secretary Sarah Huckabee Sanders confirmed that was President Trump’s position. Sen. Gardner is working on a bill that would protect states’ marijuana policies from federal interference, saying, “My colleagues and I are continuing to work diligently on a bipartisan legislative solution that can pass Congress and head to the President’s desk to deliver on his campaign position.” We note that during the campaign, President Trump indicated that marijuana legalization should be a state issue, but he also called Colorado’s marijuana legalization scheme “bad,” and said that the state’s scheme has “big problems,” is “causing a lot of problems,” and is not “trouble-free.”

While the announcement comes as a relief to pro-legalization advocates that a broader federal crackdown is not forthcoming in Colorado, there are many unanswered questions. The deal between Sen. Gardner and the Trump Administration appears only to provide assurances for Colorado’s policies, making it unclear as to whether federal prosecutors will treat other states the same as Colorado. Attorney General Sessions’ guidance is still in effect, leaving the risk of expanded federal prosecutions. Further, any legislative fix faces a perilous path through Congress, especially during what will be a fractious mid-term election cycle. It is also unclear if President Trump will continue to issue signing statements on bills restricting the Department of Justice’s use of funds to prevent the implementation of state medical marijuana laws.

Still, Friday’s announcement comes as more and more leading Republicans are publicly supporting legalization. Last week, former Speaker of the House John Boehner announced that he was joining the Board of Advisors for a cannabis company operating in 11 states. Boehner, who said in 2011 that he was “unalterably opposed” to legalization, now says that his position has “evolved.”  In a statement, he said, “I’m convinced de-scheduling the drug is needed so we can do research, help our veterans, and reverse the opioid epidemic ravaging our communities.” The expanding mainstream support for legalization will make it more difficult for anyone to alter state cannabis laws.

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.

McDermott Will & Emery