Pubdate: Wed, 11 Jan 2017
Source: Washington Post (DC)
Copyright: 2017 The Washington Post Company
Author: David Weigel


In November 2012, people in Colorado and Washington voted to legalize
marijuana for recreational use in their states. Nine months later, as
the states worked out their local legal regimes, then-Attorney General
Eric H. Holder Jr. issued a directive to law enforcement, urging them
to let the states' experiments proceed. By the end of 2016, a batch of
new states had legalized marijuana, and Holder himself was advocating
for marijuana to be "rescheduled" -- meaning that penalties should be
lowered for sale and possession across the country.

There might be no easier position for Sen. Jeff Sessions (R-Ala.) to
reverse if, as expected, he is confirmed as attorney general. But in
Tuesday's 10-hour grilling, Sessions received two questions about
marijuana, on in the form of a loping and friendly inquiry about
federalism from Sen. Mike Lee (R-Utah).

"For the first time in a very long time, you have seen some attention
paid to federalism, but in the limited area associated with
marijuana," Lee said. "In other words, there are federal laws
prohibiting the use of marijuana, the sale of marijuana, the
production of marijuana that apply regardless of whether a state has
independently criminalized that drug, as every state until recently
had. Then you had some states coming along and decriminalizing it,
sometimes in the medical context, other times in a broader context.
The response by the Department of Justice during the Obama
administration has been interesting and it's been different than it
has in other areas. They have been slow to recognize, for instance,
federalism elsewhere. They chose to recognize it here. My question to
you is, did the way they respond to that federalism concern run afoul
of separation of powers?"

Sessions asked Lee to clarify. "Are you talking about separation of
powers within the federal government, the three branches of federal
government?" he asked. "And how does that implicate the marijuana laws?"

"Yes," Lee said. "Are there separation of powers concerns arising out
of the Department of Justice's current approach to state marijuana

[In Sessions hearing, 'senatorial courtesy' is lost in the tumult of

Lee had not asked directly whether Sessions would reverse what the
Obama administration did. Instead, he framed the question as one of
whether the Sessions DOJ would obey the law and defer to Congress.
That approach, followed literally, would put Sessions on the opposite
side of the Obama administration and Democrats on a host of issues --
from the status of immigrants living in the United States to voting

In his answer, Sessions suggested that Congress, unlikely to move on
marijuana policy, would set the standard.

"I think one obvious concern is that the United States Congress has
made the possession of marijuana in every state, and distribution of
it, an illegal act," he said. "So, if you need -- if that's something
that's not desired any longer, Congress should pass a law to change
the rule. It's not so much the attorney general's job to decide what
laws to enforce. We should do our job and enforce laws effectively as
we're able."

The other marijuana question came from Sen. Patrick Leahy (D-Vt.), who
asked how Sessions squared state's rights with marijuana policy.

"I believe your own state of Alabama permits the use of a derivative
of marijuana known as CBD oil, legal in Alabama, illegal under federal
law," said Leahy. "If you are confirmed as the nation's chief law
enforcement official, and you know that we have very, very limited
federal resources -- in fact, we spend about a third of our budget now
just to keep the prisons open because of mandatory minimums and
whatnot -- would you use our federal resources to investigate and
prosecute sick people who are using marijuana in accordance with their
state laws, even though it might violate federal law?"

"I won't commit to never enforcing federal law," said Sessions. "But,
absolutely, it's a problem of resources for the federal government.
The Department of Justice under Lynch and Holder set forth some
policies that they thought were appropriate to define what cases
should be prosecuted in states that have legalized at least in some
fashion some parts of marijuana."

"Do you agree with those guidelines?" asked Leahy.

"I think some of them are truly valuable in evaluating cases," said
Sessions. But, fundamentally, the criticism I think that was
legitimate is that they may not have been followed. Using good
judgment about how to handle these cases will be a responsibility of
mine. I know it won't be an easy decision, but I will try to do my
duty in a fair and just way."

"The only reason I mention it," said Leahy, "[is that] you have some
very strong views. You even mandated the death penalty for anyone
convicted of a second drug trafficking offense, including marijuana,
even though mandatory death penalties are, of course,

"Well, I'm not sure under what circumstances I said that," said
Sessions. "But I don't think that sounds like something I would
normally say. I will be glad to look at it."

It was a mixed series of answers, some of it encouraging to defenders
of the current policy, some not. In an interview Monday, Sen. Rand
Paul (R-Ky.), who supports allowing states to experiment with
legalization without federal meddling, said that he had tried to
communicate to Sessions that defending states' rights would allow
legalization to continue.

"Many conservatives believe in leaving states to themselves for the
most part," Paul said. "Decisions like legalizing marijuana should be
left up to states. I've had that discussion with Sessions. I can't
characterize what he said, but I hope he won't interfere with
legalization. He needs to answer that himself."

Don Murphy, a legislative strategist at the Marijuana Policy Project,
said that the Sessions answers were expected.

"What was most telling may be that not only did Sessions not use his
opening statement to mention the conflict between state and federal
law regarding marijuana but that no member of either party thought it
was worthy of a first round question," he said. "They all know
marijuana policy reform is popular with voters across the political
spectrum and a line not to be crossed. I'm sure Trump knows it too."
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