Attorney General Sessions and Marijuana Laws

Attorney General Jeff Sessions, the nation’s top law enforcement officer, is an outspoken critic of marijuana.  How Attorney General Sessions approaches marijuana, both medical and recreational, has the power to shape, enhance or destroy the industry.  One of the core issues for legal marijuana businesses is the federal illegality of marijuana: state legalization does not change the Controlled Substances Act, 21 U.S.C. 13, which still classifies marijuana as a Schedule I controlled substance.  The conflict between states where marijuana is legal and the federal laws criminalizing marijuana creates a legitimate federalism concern.

Portrait of Attorney General Jeff Sessions.

Before Attorney General Sessions was appointed, marijuana businesses could rely on some limited federal guidance.   Former Obama Administration Deputy Attorney General James M. Cole issued a memorandum to all U.S. Attorneys on August 29, 2013 (the “Cole Memorandum”) explaining the Department of Justice’s (“DOJ”) position on the limited scenarios where federal law enforcement should enforce federal marijuana laws, which primarily address the availability and/or provision of marijuana to children and the diversion of marijuana across state lines.  Soon thereafter, the Department of the Treasury Financial Crimes Enforcement Network issued a memorandum to financial institutions about their role in marijuana businesses (the “FinCEN Memorandum”) which, for all intents and purposes, adopted the positions taken by the DOJ as set forth the Cole Memorandum.

Continue reading