Davis Wright Tremaine LLP

Since President Trump assumed office in January 2016, there has been substantial concern that the Department of Justice would take a harder line on state-legal cannabis than DOJ’s relatively tolerant approach during the Obama presidency. Recent comments by William Barr during his confirmation hearings for Attorney General of the United States suggest there is not likely to be a significant change. When asked by two senators whether he intended to use federal resources to prosecute cannabis businesses operating in compliance with state law, Barr said that he did not, and called for Congress to act to resolve the tension between state and federal law.

Barr’s comments signal the latest development in a series of policy positions taken by federal law enforcement towards states which have legalized cannabis. Under President Barack Obama, the Department of Justice issued memoranda—commonly known as the “Cole Memoranda” after their author, Deputy Attorney General James Cole—setting forth a policy de-prioritizing prosecution of those involved in the cultivation and distribution of cannabis in compliance with state-law in states which had legalized medical or recreational cannabis. In January, 2018, former-Attorney General Sessions rescinded the Obama-era guidance and stated that prosecutors should “follow the well-established principles that govern all federal prosecutions.” Nothing in the Sessions memorandum directed United States Attorneys to begin new prosecutions or change the standards they previously used, but there was understandable consternation that rescinding the Obama-era policies signaled a forthcoming federal crackdown on state-legal cannabis operations. That crackdown never materialized and Attorney General Sessions left office without realizing his dream of eradicating legalized cannabis from the United States.

Now there is more reason to believe that Jeff Sessions’ likely replacement will continue the federal government’s hands-off approach to state-legal cannabis. On December 7, 2018, President Trump nominated William Barr to be Attorney General of the United States. Barr has a history as a tough-on-crime drug-warrior, and at his confirmation hearing on Tuesday, Senators Kamala Harris and Corey Booker both pressed Barr on his anticipated approach towards the growing number of states that have legalized cannabis for medical or recreational use. Both senators specifically asked Barr to confirm that he would not use federal resources to prosecute cannabis businesses in states which have legalized cannabis, and Barr agreed that he would not.

When asked by Senator Booker whether he believed Sessions was “right” to rescind the Obama-era policies, Barr responded that his approach “would be not to upset settled expectations and the reliance interest that have arisen as a result of the Cole Memoranda.” Barr then said that he would not “go after companies that have relied on the Cole Memoranda.” Perhaps noting the possibility that Barr was limiting his response only to companies or investors which began participating in the legal cannabis industry while the Cole Memoranda were in effect, Senator Harris asked Barr explicitly if he was “intending to use the limited federal resources at your disposal to enforce federal marijuana laws in the states that have legalized marijuana?” Barr responded: “to the extent people are complying with the state laws, you know, distribution and production and so forth, we’re not going to go after that.”

Of course, Barr has not yet been confirmed and if, as widely expected, he is confirmed, his answers to the Senate are not binding policy positions. Nonetheless, Barr could likely expect a sharp rebuke from Senators Booker and Harris if he implements policies towards state-legal cannabis that differ substantially from his responses to them. The hearings provide some hope that DOJ will continue its relatively hands-off approach, even if it does not move towards greater certainty by issuing new and clear guidelines to guide participants in the industry.

Other statements at the hearing indicate the growing support for a federal solution to the tension between state and federal laws on cannabis. Barr said that he, personally, thought the appropriate solution is “a federal law that prohibits marijuana everywhere.” Sharp-eyed readers will note that an existing federal law—the Controlled Substances Act—currently prohibits marijuana everywhere and is the cause of the same tension about which Barr was speaking. But Barr correctly noted that “we can’t stay in the current situation” and that it is “incumbent on the Congress” to resolve the current uncertainty. The growing tide of popular support for legal cannabis, the success of the cannabis industry in those states which have legalized it, and the recent legalization of hemp and hemp-derived CBD in the 2018 Farm Bill all suggest that when Congress does act, it is less likely to ratchet up federal prohibition, and more likely to implement a federalist approach in which legalization is left to the discretion of the states.

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