Attorney General Jeff Sessions is rescinding the Obama-era policy that had paved the way for legalized marijuana to flourish in Colorado and other states. Political push back on all sides from across the state was swift and steady.
How we got here: Recreational marijuana was made legal in Colorado when Amendment 64 was approved by voters in 2012. In 2014, the law went into effect. What's at issue is the Cole Memorandum, issued in 2013 by Deputy Attorney General James Cole. It directed U.S. attorneys not to make marijuana prosecutions a priority in states where voters have approved its legalization.
That changed on Thursday, with this announcement by Sessions:
"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission."
“I think this is a major shot across the bow from the federal government,” Brian Vicente, the author of Amendment 64, told CPR's Ben Markus. “In one sweep of his pen, Sessions got rid of all those memos, so now we’re back at a place where local prosecutors have unfettered power to prosecute marijuana cases as they see fit.”
Sam Kamin, a constitutional law professor at the University of Denver, told Markus the immediate fallout from the Sessions decision isn't clear. He called the move on legal recreational marijuana "unsettling."
"Do they have the resources to go into every dispensary in Colorado and seize the property and arrest everyone, no," Kamin said. "Do they have enough resources to create some examples? They sure do."
Colorado interim U.S. Attorney Bob Troyer appeared in a statement Thursday to indicate his office didn’t intend to make any sudden changes in approach to marijuana enforcement.
Sessions, Troyer said, “directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions. The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions.”
Colorado Attorney General Cynthia Coffman was more explicit. "Don't freak out,” she said. Her office could fight back if the federal government did prosecute businesses who are complying with Colorado laws. "I think we'll have a strong argument should the federal government try to change the rules," Coffman said.
They might not have been freaking out, but a variety of Coloradans from both parties in Congress and the state Capitol were not happy with the move. They say it came without warning, contradicted previous statements from Sessions, and ran against the decision made by Colorado voters.
Republican Sen. Cory Gardner told CPR's Ann Marie Awad that in a conversation before his confirmation hearing, Sessions said he had no plans to withdraw the Cole memo, that such a move was not part of President Trump's agenda. "I was under the impression that he would keep his word," Gardner said. "I was not told the truth."
Gardner had posted to Twitter earlier, stating, "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 also took to the Senate floor to register his anger.
"The announcement by the Department of Justice is a drastic departure from the Attorney General’s previous commitment to Senator Cory Gardner during the confirmation process that he would uphold the Obama Administration’s treatment of marijuana enforcement, and President Trump’s comments that he would leave it to the states," said Republican Rep. Scott Tipton. "The people of Colorado voted to legalize marijuana in the state, and I am committed to defending the will of Coloradans."
Fellow Colorado Republican Rep. Mike Coffman, also posting on Twitter in reaction, said, "Attorney General Sessions needs to read the Commerce Clause found in Article 1, Section 8 , Clause 3 of the U.S. Constitution that limits the power of the federal government to regulate interstate and not intrastate commerce. The decision that was made to legalize marijuana in Colorado was made by the voters of Colorado and only applies within the boundaries of our state. Colorado had every right to legalize marijuana, and I will do everything I can to protect that right against the power of an overreaching federal government."
Democratic Rep. Jared Polis told CPR's Awad the decision was "devastating," and noted that members of Congress were blindsided by the news. "The entire existence of the industry, all of the investors the customers, the leases the landlords, all of that is in the hands of a government bureaucrat in Washington," he said.
"Unconscionable," said Democratic Rep. Diana DeGette on Twitter. "This is why I have repeatedly sponsored legislation to prevent this type of federal overreach; it undermines the rights of Coloradans and hurts an important industry." She also labeled the words of the president as quoted in a 9News tweet from 2016 as "Hypocrisy Edition" "'I think it should be up to the states, absolutely,' Candidate Trump said of #marijuana sales laws in 2016."
Rep. Ed Perlmutter, a Democrat, said, "The Cole memo provided assurances to states like Colorado with marijuana use and a strict regulatory structure in place by allowing these states to proceed according to the will of their voters. While it did not relieve all uncertainty, especially for financial institutions, it was a step forward. Today’s announcement creates even greater uncertainty in the industry and shows a lack of respect for states’ rights."
"Thirty states comprising more than two thirds of the American people have legalized marijuana in some form. The Cole memo got it right and was foundational in guiding states’ efforts to regulate the production and distribution of marijuana," Gov. John Hickenlooper said. "Colorado has created a comprehensive regulatory system committed to supporting the will of our voters. We constantly evaluate and seek to strengthen our approach to regulation and enforcement. Our focus will continue to be the public health and public safety of our citizens. We are expanding efforts to eliminate the black market and keep marijuana out of the hands of minors and criminals. Today’s decision does not alter the strength of our resolve in those areas, nor does it change my constitutional responsibilities."
Speaker of the Colorado House Crisanta Duran, a Democrat, and state Senate President Kevin Grantham, a Republican, both criticized the DOJ's move while speaking with Colorado Matters host Ryan Warner.
"I think the federal government needs to respect the will of Colorado voters," Duran said. "And we are going to do everything we can to push back on this."
Kristi Kelly, the executive director of the Marijuana Industry Group in Colorado, urged businesses keep their noses clean. "Make sure that you really understand the laws under which things are operating," she told CPR's Ben Markus. "Keep marijuana in the hands of the people that are supposed to have it and out of the hands of the people that aren’t supposed to have it, pay your taxes, and be a good steward of this model."
Not all the reaction was critical, however.
In a statement, the DEA's Denver Field Division said it "would like to thank Attorney General Jeff Sessions for lifting the restrictions placed upon them by the Cole Memo and providing an opportunity for the DEA, in coordination with and the USOA, to investigate and enforce marijuana laws on a case-by-case basis."
The memo continued: "Colorado has become the marijuana capital of the world and there are a lot of marijuana trafficking organizations that are in violation of both Colorado State laws and U.S. Federal laws. The DEA will continue to coordinate marijuana investigations."
Tom Gorman, who directs the Rocky Mountain High Intensity Drug Trafficking Area, and who opposes the Cole memo, told CPR's Awad that the memo has only caused confusion. "At what point in time do we say, no, the law is the law. Change the law if you don't like it."
"This is a good day for public health. The days of safe harbor for multi-million dollar pot investments are over," said Kevin A. Sabet, a former Obama Administration drug policy adviser who is now head of the group. "DOJ's move will slow down the rise of Big Marijuana and stop the massive infusion of money going to fund pot candies, cookies, ice creams, and other kid-friendly pot edibles. Investor, banker, funder beware."
And the bankers are wary.
"We expect this will have a chilling effect on the marijuana industry in Colorado," said Don Childears, president and CEO of the Colorado Bankers Association. The organization favors a permanent change in federal law rather than federal regulations that can change with White House agendas. "Marijuana remains illegal at the federal level and banks must follow all laws. Banks are responsible to regulators, most of which are independent and uncontrolled by the President’s Executive Branch. The idea of no prosecution is nice, but to banks regulators have the real power."
But Sean McAllister, a prominent marijuana attorney and a board member of the National Cannabis Industry Association told CPR's Markus that "entrepreneurs that are willing to work in the cannabis space understand the risk, and have been profiting from it."
"We expect that U.S. Attorneys around the country will continue to look at cannabis and determine [if] it is more important to go after a regulated industry, with state licenses that pays taxes, that employs people, or to focus on black market actors that are not following the rules."
CPR's Ann Marie Awad, Ben Markus, Megan Verlee and Ryan Warner contributed reporting to this story.
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