Lawyer Normal Jeff Classes’ resolution to rescind the Cole memorandum has been met with predictable furor: the lawyer common is imposing his private views on medication; ignoring the desire of the legalization states; trampling on states’ rights; and imperiling what’s now a multi-billion greenback business, to not point out the hundreds of jobs that depend upon it.
However these criticisms miss a extra central level highlighted by the lawyer common’s actions. The chief department, nevertheless well-intentioned in responding to congressional inaction, shouldn’t be deciding the best way to take care of state legalization of marijuana by means of “enforcement discretion.” Fairly, it was and stays Congress’ duty to do this, and it’s time for Congress to take action.
The enforcement discretion strategy creates quite a few sensible issues. The chief department can’t change the regulation, and marijuana is unlawful underneath federal regulation. In opposition to the backdrop of illegality, using enforcement discretion to handle state marijuana legalization left important uncertainty for business. At the obvious, is the specter of felony prosecution, which is topic to the differing coverage views of every administration. As well as, marijuana companies lack correct entry to the banking and monetary system, resulting in a largely cash-based enterprise mannequin that’s ripe for abuse. Neither is thereclarity as to the federal tax therapy of marijuana companies, or how different federal rules, as an illustration environmental and pesticide rules, apply.
Such uncertainty is dangerous for the companies, dangerous for shoppers, and dangerous for regulators.
The strategy embodied by the Cole memorandum additional muddied how regulation enforcement offers with marijuana. Inside a state that legalized marijuana, what precisely would set off federal enforcement? And what relationship may federal regulation enforcement correctly have with state regulation enforcement, as they’re imposing conflicting authorized necessities. Legislation enforcement cooperation is, even underneath the perfect of circumstances, by no means easy, however within the case of states with legalized marijuana it’s significantly fraught.
Other than these and different sensible issues, the chief department strategy raises extra elementary questions. Congress made marijuana unlawful, basically an absolute prohibition. The Supreme Courtroom in flip held in Gonzales v. Raich that Congress acted inside its constitutional authority in doing so. But, the chief department by means of an train of “discretion” successfully imposed a distinct scheme than that enacted by Congress. There’s a non-trivial query of whether or not the chief improperly assumed the legislative operate by means of enforcement coverage. This isn’t solely in stress with the Structure’s command that the chief “shall take care that the legal guidelines be faithfully executed,” it additionally raises separation of powers considerations.
Additionally it is troubling that the Cole memorandum countenanced persevering with violations of federal regulation. There’s a professional debate available over whether or not marijuana must be authorized, however till Congress acts, it’s nonetheless unlawful. What classes are being taught the place the federal authorities says that federal regulation might be ignored in a systemic method.
That’s inconsistent with the principle of the rule of regulation.
To make sure, states which have decriminalized medical and/or leisure marijuana have achieved an admirable job of constructing regulatory constructions to guard the general public well being and security.
Colorado, as an illustration, has put in place a complicated regulatory and licensing scheme, by statute and rule, and the Colorado Division of Income has constructed a topflight group within the Marijuana Enforcement Division, all of which is additional supported by different state departments and thru native regulation and enforcement. But, nevertheless sturdy Colorado’s and different states’ regulatory techniques, they’re no substitute for a coherent federal authorized framework.
Lawyer Normal Classes’ resolution creates a possibility for Congress to behave. Colorado and different states’ congressional delegations have to be doing greater than complaining about what the lawyer common has achieved or just placing Trump administration’s Justice Division nominees on maintain. As an alternative, Congress must step up and fulfill its constitutional function and tackle the way forward for marijuana legalization, no matter that future could also be.
Nate Bruggeman was an assistant lawyer common with the Colorado Division of Legislation the place he represented the Colorado Division of Income, Marijuana Enforcement Division with respect to Colorado’s regulation of medical and retail marijuana. Nate at present is a founding member and principal at a boutique consulting agency.