DOJ rescinds guidance on marijuana enforcement, Durkan and Holmes defiant

This morning U.S. Attorney General Jeff Sessions issued a memo rescinding Obama-era guidance on federal enforcement of the Controlled Substances Act (CSA) as it relates to marijuana.  Seattle Mayor Jenny Durkan and Seattle City Attorney Pete Holmes had sharp words in response.

Seattle Mayor Jenny Durkan responding to Attorney General Jeff Sessions’ memo rescinding guidance on de-prioritizing enforcement of marijuana laws

The CSA lists marijuana as a “Schedule I” drug, the list of most harmful drugs with no known medicinal value. Since its listing decades ago, medicinal uses have been documented, and further research has somewhat lessened concerns about its harmful and addictive effects,  but political pressure has prevented it from being moved to a less stringent schedule.

When California passed the Compassionate Use Act in 1996 allowing limited personal cultivation and use of marijuana for medicinal purposes, there was suddenly a legal conflict between state and federal laws. The Controlled Substances Act was challenged in court with plaintiffs arguing that it violated the Tenth Amendment, which reserves all powers not explicitly given to the federal government in the Constitution to the states. The federal government argued that the Commerce Clause, which authorizes the feds to regulate interstate commerce, covers the Controlled Substances Act. A divided U.S. Supreme Court agreed with the federal government and upheld the CSA with a narrow and nuanced argument that even though California’s law didn’t authorize any commerce, let alone interstate commerce, the Commerce Clause allows the federal government to enact a complete system of laws that collectively regulate interstate commerce in a domain, even if pieces of that legislation don’t directly relate to interstate commerce. In this case, the majority argued that if everyone in California could grow and use their own marijuana, it would inevitably have an effect on interstate commerce of the product. Interestingly, it was the liberal wing of the court, plus Scalia, in the majority upholding the Controlled Substances Act, and the conservative wing (Rehnquist, O’Connor and Thomas) voting to throw it out.

What they didn’t say was that the California state law was preempted by the federal law and was thus illegal under the Supremacy Clause of the U.S. Constitution, which states that federal law preempts state law where conflicts exist. The case law on this issue says that the state law would be illegal only if there is a “positive conflict,” i.e. there is no way for someone to follow both sets of laws simultaneously. In the case of the marijuana laws, if someone chooses not to participate in marijuana-related activities at all, then they violate neither law.

Since then, a majority of states have enacted laws allowing for medicinal use of marijuana, and a handful have legalized recreational use. Those laws also have created regulatory systems to keep the use of marijuana consistent with the federal enforcement priorities, including:

  • preventing distribution of marijuana to minors;
  • preventing marijuana revenues from going to criminal enterprises, gangs and cartels;
  • preventing marijuana activity from being used as a cover or pretext for illegal drug trafficking or other illegal activity.

This has dramatically broadened the conflict between the CSA and more permissive state laws. In 2011 as Washington State began considering authorizing medical marijuana distribution and use, then-Governor Gregoire asked Attorney General Eric Holder for guidance on how the conflict would be viewed by the Department of Justice.  The reply came from then-US Attorney for Western Washington Jenny Durkan (now Seattle Mayor) and her counterpart for Eastern Washington:

The prosecution of individuals and organizations involved in the trade of any illegal drugs and the disruption of drug trafficking organizations is a core priority of the Department. This core priority includes prosecution of business enterprises that unlawfully market and sell marijuana. Accordingly, while the Department does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law as stated in the October 2009 Ogden Memorandum, we maintain the authority to enforce the CSA vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law. The Department’s investigative and prosecutorial resources will continue to be directed toward these objectives.

But by 2013 the Justice Department had softened its stance, and issued a memo (known broadly as the “Cole Memo“) with new guidance for US attorneys, saying:

  • traditionally state and local governments have taken a leading role in enforcement of the CSA;
  • to the extent that states are enacting strict regulatory schemes for marijuana as they legalize certain uses, that actually strengthens enforcement of the federal enforcement priorities;
  • because of that, the DOJ and DEA will de-prioritize federal enforcement of the CSA as it relates to marijuana in states with strong regulatory systems of their own.

Durkan was one of the lead authors of the policy provisions in the Cole memo.

That brings us to today.  Sessions’ memo this morning rescinds the Cole Memo. However, it argues that individual U.S. attorneys continue to have broad discretion as to which crimes to prosecute, in the absence of top-down directive to prioritize certain types.  He didn’t give such a directive to prioritize marijuana-related crimes today, but could do so at any point in the future (and Session has made it clear in many past speeches that he considers marijuana to be a very dangerous drug).

In a joint press conference this morning, Durkan and City Attorney Pete Holmes decried Sessions’ action. Durkan argued that the consistency and predictability of knowing how marijuana-related activity would be treated by law enforcement is critically important. Durkan pointed out that Washington’s regulatory scheme has put an end to the black market for marijuana in the state, and gave patients access to something that in some instances has been “life-saving.” She went on to say that the city will not be “bullied” by the Trump Administration, and suggested that President Trump is “obsessed with dismantling things that are actually working.” She said that the city will not be closing down marijuana-related businesses, and it will not cooperate with federal law enforcement if it attempts to crack down:

“Let’s be clear: Our Seattle Police Department will not participate in any enforcement action related to legal businesses or small personal possession of marijuana by adults. Federal law enforcement will find no partner with Seattle to enforce the rollback of these provisions.”

On that point, the Tenth Amendment is on the city’s side: as with federal immigration law, the federal government cannot force state and local law enforcement officials to enforce federal drug laws. Without local support, the Drug Enforcement Agency will need to do it all itself.  To that end, Durkan also argued that the change in policy today is “shameful,” since it will divert federal law enforcement personnel away from the real crisis: opiates.

Durkan said that she reached out this morning to the current U.S. Attorney for Western Washington, but as of the press conference had not spoken directly with her on how the new guidance will be enacted locally (and how the U.S. Attorney plans to use her prosecutorial discretion).

Holmes said that he had spoken with state Attorney General Bob Ferguson, and called the Sessions memo an “assault on the sovereignty of our state.” He claimed that the Cole memo avoided directly addressing whether a state could directly challenge the constitutionality of the CSA under the 10th Amendment (it didn’t in the California case, which was filed by private citizens), but with the Cole amendment rescinded that question is back in play. Don’t be surprised if Holmes and Ferguson sue the Trump administration over that issue.  Durkan lent her support, saying “if there is legal action that is necessary, we’ve discussed it and we will take it.”

As for the uncertainty facing those in Seattle and the state who are part of the commercial marijuana economy, Durkan said, “Right now it’s business as usual.”  She also reiterated her support for safe consumption sites as a harm reduction measure, though she noted that it was a separate issue from marijuana.

Here’s the full statement from Mayor Durkan following today’s announcement.


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