Attorney General Jeff Sessions announced Thursday that he was rescinding an Obama-era policy that had paved the way for legalized marijuana to flourish in states across the country, prompting quick pushback from at least two Republican senators from states that allow its use.
In a long-awaited move, the Justice Department chief withdrew federal guidelines that effectively limited prosecutions of businesses and individuals who sold pot in a legal manner under state law, even though the drug remains illegal under federal law.
Sessions said future prosecutions would be up to individual U.S. attorneys. However, the announcement appeared intended to discourage marijuana-related business by being deliberately vague about future federal enforcement efforts.
The new approach will probably increase confusion about the legal risk of marijuana-related activity in states that have passed legislation allowing people to grow, buy or use pot.
"Given the Department's well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately," Sessions said in a one-page memo sent to federal prosecutors nationwide.
In a statement, the attorney general said the department's earlier guidance "undermines the rule of law" by second-guessing the national drug laws Congress has passed.
However, Justice Department officials who briefed reporters on the announcement declined to say whether the new policy was intended to increase federal prosecutions for marijuana-related crimes.
“I can’t sit here and say whether it will or will not lead to more marijuana prosecutions,” said a senior DOJ official who spoke on condition of anonymity. “We believe U.S. attorneys’ offices should be opened up to bring all of these cases that are necessary to be brought.”
Justice Department leaders said the Obama-era policies, most of them issued by Deputy Attorney General Jim Cole, made marijuana industry players too comfortable in a business that has always been illegal under federal law.
“The Cole memo as interpreted created a safe harbor for the marijuana industry to operate in these states. There is a belief that that is inconsistent with what federal law says,” the official said. "The Cole memo was not consistent with federal law. [Sessions] believes that it's important that the Department of Justice be enforcing the laws that were enacted by Congress."
When states stepped up legalization efforts under the Obama administration, Justice Department officials considered the possibility of filing litigation aiming to head off such moves, but ultimately chose not to do so and to instead accommodate the state laws.
Asked whether such suits against states were now again a possibility, the current DOJ official said: “Further steps are still under consideration."
The Trump administration's policy shift may not be sufficiently dramatic to drive existing players out of the pot business or to discourage new entrants who are intent on taking advantage of opportunities being created by increasingly liberalized state laws.
The approach that Sessions announced Thursday, however, could complicate the marijuana business by making it more difficult for pot sellers to access banking services. One of the memos the attorney general withdrew was a 2014 Justice Department policy that seemed to assure banks that they could do business with marijuana sellers complying with state laws.
While that memo is now canceled, parallel Obama-era guidance from the Treasury Department remains on the books. A Treasury spokesman did not immediately respond to an inquiry about whether that agency is reviewing its policies to bring them into line with the Justice Department changes.
Justice Department officials also faced questions about whether new prosecutions over marijuana would divert resources from combating the opioid addiction epidemic that President Donald Trump has declared a national priority. Officials said U.S. attorneys in each district would be able to assess the severity of various problems in their district and react accordingly.
"This is not saying that opioid cases should not be brought," a DOJ official said. "Districts that have opioid issues, that is what should be weighed into these determinations."
California, which has allowed medical marijuana use for two decades, opened its dispensaries to the general public without prescriptions Monday. Justice Department officials said they were unaware of any link between the timing of Sessions’ announcement and the state’s recent shift.
“This is something that has been under consideration at the department for a long time,” the official told reporters. “I know of nothing that ties it directly to that.”
Sessions, a hard-liner against the push to legalize marijuana, has vowed to take a tougher stance since joining the administration of Trump last year. In February, Sessions said that while states "can pass the laws they choose," he maintained that it remained "a violation of federal law to distribute marijuana throughout any place in the United States."
But the gesture is already facing opposition from political leaders in states where marijuana has been decriminalized or legalized.
Colorado’s U.S. attorney, Bob Troyer, issued a statement Thursday saying his office wouldn’t change its approach to prosecuting marijuana crimes, despite the Justice Department's announcement.
Sens. Cory Gardner of Colorado, where recreational marijuana was approved by voters in 2012, and Lisa Murkowski of Alaska, where pot has been decriminalized since 2003 and legalized recreationally since 2014, denounced the plan Thursday after it was first reported by the Associated Press.
"This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation," Gardner said on Twitter. "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."
Gardner cited comments from Trump during a July 2016 interview that the issue should be "left up to the states" in criticizing the move. White House press secretary Sarah Huckabee Sanders said at Thursday's press briefing that the president supported the new guidance and that “enforcing federal law ... would be his top priority."
"Over the past year I repeatedly discouraged Attorney General Sessions from taking this action and asked that he work with the states and Congress if he feels changes are necessary," Murkowski wrote in a statement. "Today's announcement is disruptive to state regulatory regimes and regrettable."
Rep. Earl Blumenauer (D-Ore.), co-chairman of the Congressional Cannabis Caucus, called the plan "outrageous," saying: "Going against the majority of Americans — including a majority of Republican voters — who want the federal government to stay out of the way is perhaps one of the stupidest decisions the Attorney General has made."
However, Kevin Sabet, president of an organization opposed to marijuana legalization, praised the decision to rescind the Obama-era guidance. Sabet said the announcement would not put the target on individual marijuana users but rather undercut monetary support for the growing marijuana sales industry.
“We hope that this is the beginning of the end of this new Big Tobacco industry,” said Sabet, leader of Smart Approaches to Marijuana.
It was not immediately clear how the Justice Department's new approach would be affected by a budget rider that prohibits the use of federal money to interfere with state-authorized medical marijuana use.
A 2016 ruling from the 9th U.S. Circuit Court of Appeals interpreted that amendment to bar federal prosecutors in Western states from proceeding with criminal cases against medical marijuana sellers complying with state law.
A Justice Department official said prosecutors were abiding by that ruling in the nine 9th Circuit states but reserved their rights to bring such cases in other states not covered by the decision.
Justice Department officials said federal prosecutors might focus their attention on states like Nebraska, where officials complain of an uptick in pot sales, distribution and violence that they attributed to a spillover from legal marijuana businesses in neighboring Colorado.
"Diversion of marijuana out of any of the states that have legalized marijuana under state law is obviously a concern," a Justice official said.