Attorney General Jeff Sessions’ decision to rescind the Cole memorandum has been met with predictable furor: the attorney general is imposing his personal views on drugs; ignoring the will of the legalization states; trampling on states’ rights; and imperiling what is now a multi-billion dollar industry, not to mention the thousands of jobs that rely upon it.
But those criticisms miss a more central point highlighted by the attorney general’s actions. The executive branch, however well-intentioned in responding to congressional inaction, should not be deciding how to deal with state legalization of marijuana through “enforcement discretion.” Rather, it was and remains Congress’ responsibility to do that, and it is time for Congress to do so.
The enforcement discretion approach creates numerous practical problems. The executive branch cannot change the law, and marijuana is illegal under federal law. Against the backdrop of illegality, the use of enforcement discretion to address state marijuana legalization left significant uncertainty for industry. At the most obvious, is the threat of criminal prosecution, which is subject to the differing policy views of each administration. In addition, marijuana businesses lack proper access to the banking and financial system, leading to a largely cash-based business model that is ripe for abuse. Nor is there
clarity as to the federal tax treatment of marijuana businesses, or how other federal regulations, for instance environmental and pesticide regulations, apply.
Such uncertainty is bad for the businesses, bad for consumers, and bad for regulators.
The approach embodied by the Cole memorandum further muddied how law enforcement deals with marijuana. Within a state that legalized marijuana, what exactly would trigger federal enforcement? And what relationship could federal law enforcement properly have with state law enforcement, as they are enforcing conflicting legal requirements. Law enforcement cooperation is, even under the best of circumstances, never straightforward, but in the case of states with legalized marijuana it is particularly fraught.
Aside from these and other practical problems, the executive branch approach raises more fundamental questions. Congress made marijuana illegal, essentially an absolute prohibition. The Supreme Court in turn held in Gonzalez v. Raich that Congress acted within its constitutional authority in doing so. Yet, the executive branch through an exercise of “discretion” effectively imposed a different scheme than that enacted by Congress. There is a non-trivial question of whether the executive improperly assumed the legislative function through enforcement policy. This is not only in tension with the Constitution’s command that the executive “shall take care that the laws be faithfully executed,” it also raises separation of powers concerns.
It is also troubling that the Cole memorandum countenanced continuing violations of federal law. There is a legitimate debate to be had over whether marijuana should be legal, but until Congress acts, it is still illegal. What lessons are being taught where the federal government says that federal law can be ignored in a systemic manner.
That is inconsistent with the precept of the rule of law.
To be sure, states that have decriminalized medical and/or recreational marijuana have done an admirable job of building regulatory structures to protect the public health and safety.
Colorado, for instance, has put in place a sophisticated regulatory and licensing scheme, by statute and rule, and the Colorado Department of Revenue has built a topflight organization in the Marijuana Enforcement Division, all of which is further supported by other state departments and through local regulation and enforcement. Yet, however strong Colorado’s and other states’ regulatory systems, they are no substitute for a coherent federal legal framework.
Attorney General Sessions’ decision creates an opportunity for Congress to act. Colorado and other states’ congressional delegations need to be doing more than complaining about what the attorney general has done or simply putting Trump administration’s Justice Department nominees on hold. Instead, Congress needs to step up and fulfill its constitutional role and address the future of marijuana legalization, whatever that future may be.
Nate Bruggeman was an assistant attorney general with the Colorado Department of Law where he represented the Colorado Department of Revenue, Marijuana Enforcement Division with respect to Colorado’s regulation of medical and retail marijuana. Nate currently is a founding member and principal at a boutique consulting firm.
