Sessions Rescinds Obama-Era Policy Which Ignored Marijuana Violations

By Rachel Alexander Published on January 10, 2018

Last week, Attorney General Jeff Sessions rescinded an Obama administration policy that looked the other way at marijuana production, sale and possession. Sessions will let federal prosecutors to decide whether to prosecute offenders.

The Obama policy emboldened several states to legalize the drug for recreational or medical use. The policy assured users and sellers that if they abided by state law, they would be at little risk for prosecution.

Conservatives Disagree

National Review‘s David French calls the prior policy an “unconstitutional Obama policy that privileged executive power over the American constitutional structure.” Courts have held that the Commerce Clause of the Constitution grants the federal government the power to regulate marijuana.

However, some states’ rights advocates assert that the Commerce Clause has been interpreted too broadly. They claim that these types of laws should be left up to the states under the 10th Amendment. They argue that state “policing powers” give states the right to regulate crime.

The 2013 “Cole Memo” mainly left it up to the states to handle these crimes. It is named after then-Deputy Attorney General James M. Cole, who signed it. It directed federal prosecutors merely to emphasize keeping the drug out of the hands of minors and gangs, and from crossing state lines.


Federal law criminalized the drug. The Obama policy flagrantly ignored those laws. The correct way to stop federal prosecutions would be to have Congress repeal the laws. Since they knew they didn’t have the votes, they snuck around the law.

Eight states and Washington, D.C., allow recreational marijuana use. Nearly 30 states have legalized medical marijuana. Medical marijuana is less likely to be affected by the change. A federal budget provision prevented the DOJ from interfering with those markets in recent years. However, DOJ officials said they would not rule out prosecuting medical sellers and users.

The move comes at a time that more states are legalizing the drug. California’s new law went into effect January 1. Just hours after Sessions issued his memo, the Vermont State Legislature approved a bill. GOP governor Phil Scott said he intends to sign it. If so, it would be the first state legislature to legalize the drug without voter approval at the ballot. Massachusetts is expected to follow later this year, and possibly Maine.

Some officials are already saying they will defy any federal prosecutions. Sen. Cory Gardner (R-Colo.) said he is prepared “to take all steps necessary” to fight the move. He intends to hold up proposed DOJ nominees. He likely won’t have much to worry about. Colorado’s top federal prosecutor, U.S. Attorney Bob Troyer, says his office won’t alter its approach. But not all prosecutors may agree.

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The change won’t affect people who smoke marijuana. No one prosecutes people for merely smoking the drug. Even with the revised policy, prosecutors will continue to reserve resources for serious crimes related to the drug, such as burglary or assault. Sessions’ change would renew authority to prosecute the latter. Under the Obama policy, those types of crimes were often treated the same as possession. Criminals charged with more serious crimes were allowed to plea down to mere possession or another drug-related crime.

More States Entering the Legal Fray

Sessions is a vocal opponent of legalization. He said existing federal laws “reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.” He said the move represents “a return to the rule of law.”

The Obama-era policy has created quite a legal quagmire. 

He has compared the drug to heroin. He blames it for spikes in violence. He said the Obama-era policy created a “safe harbor” that allowed states to flout federal law. Opponents of drug legalization say it encourages pot growers to illegally grow and ship the drug across state lines, where it can sell for much more.

The Obama-era policy has created quite a legal quagmire.


Follow Rachel on Twitter at Rach_IC.

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