Attorney General’s Memorandum on Federal Marijuana Enforcement: Possible Impacts

Attorney General’s Memorandum on Federal Marijuana Enforcement: Possible Impacts

Legal Sidebari

Attorney General’s Memorandum on Federal
Marijuana Enforcement: Possible Impacts
Updated January 10, 2018
On January 4, 2018, Attorney General Jeff Sessions sent a memorandum on federal marijuana
enforcement policy (Sessions Memorandum) to all U.S. Attorneys that immediately rescinds guidance
documents specific to marijuana enforcement that were issued under the Obama Administration.
Generally, the Obama-era guidance documents afforded state and local government officials, businesses,
and individuals some measure of reassurance that they could facilitate or participate in state-authorized
marijuana cultivation, distribution, sale, and possession activities without much concern of federal
interference, despite the fact that federal law generally prohibits most conduct involving marijuana.
The Sessions Memorandum instructs U.S. Attorneys to “follow the well-established principles that govern
all federal prosecutions,” in light of the Department of Justice’s (DOJ’s) “finite resources.” Although the
Sessions Memorandum notes that it is intended “solely as a guide to the exercise of investigative and
prosecutorial discretion,” it seemingly decentralizes federal marijuana prosecutorial decisions by giving
greater flexibility to individual prosecutors, instead of having a more uniform, DOJ-wide marijuana
enforcement policy. It also indicates that such discretion must be “in accordance with all applicable laws,
regulations, and appropriations,” which would include – albeit temporarily – an appropriations rider
scheduled to end on January 19 that prohibits DOJ from using appropriated funds to prevent certain
jurisdictions “from implementing their own laws that authorize the use, distribution, possession, or
cultivation of medical marijuana.” This language, one federal appellate court has observed, is “not a
model of clarity” and is likely susceptible to different interpretations. Furthermore, Congress could
choose to readopt the current language, expand the language to protect conduct that is in compliance with
either state medical or recreational marijuana laws, or not include it in future spending measures, adding
to the uncertainty regarding the future of marijuana enforcement. Congress could also change marijuana’s
legal status under federal law.
The increased uncertainty triggered by the Sessions Memorandum highlights the ongoing tension between
state and federal marijuana laws. Regardless of state laws purporting to authorize the use of marijuana for
either medical or recreational purposes, the federal Controlled Substances Act (CSA) prohibits the
cultivation, sale, distribution, or possession of marijuana (except by those authorized to engage in
federally approved research) and provides criminal penalties for engaging in these activities. Currently,
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eight states and the District of Columbia have laws permitting both recreational and medical use of
marijuana, while 38 states allow the medical use of some form of marijuana or a marijuana extract called
cannabidiol (CBD). Though the Sessions Memorandum’s full impact remains to be seen, it may cause
confusion as to the likelihood of industry participants facing federal criminal liability.
Federal Appropriations Restrictions on DOJ Actions Regarding Medical Marijuana
The Sessions Memorandum provides federal prosecutors with the same discretion in their approach to
federal marijuana violations that they enjoy with regard to other criminal violations, simultaneously
allowing for either continued restraint or more aggressive enforcement. It would appear, therefore, that
the actual impact of the Sessions Memorandum will depend on how it is interpreted and implemented by
U.S. Attorneys in states that have adopted laws authorizing the use of marijuana for medical or
recreational purposes.
As noted, prosecutorial decisions by individual U.S. Attorneys remain subject to existing legal limitations,
including the appropriations rider included in several recent appropriations acts. The rider does not
restrict federal enforcement actions for conduct that is in compliance with state recreational marijuana
laws. But with respect to state-authorized medical marijuana conduct, the different interpretations of the
provision may have a substantial effect on the permissibility of federal prosecutions for such conduct. For
example, the provision could be viewed broadly, so as to prohibit the DOJ from using appropriated funds
to take any action that inhibits participation in a state-authorized medical marijuana activity, or more
narrowly, so as only to prevent the use of appropriated funds for medical marijuana-related enforcement
actions taken directly against states or state officials.
To date, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) is the only federal appellate court
to provide an interpretation of the rider’s meaning. In United States v. McIntosh, the Ninth Circuit heard
an appeal of consolidated cases in which California citizens sought to enjoin the DOJ from expending
funds to carry out marijuana-based prosecutions. The actual claim in McIntosh was that the DOJ had
violated the separation of powers by spending funds without authorization from Congress in
contravention of the Appropriations Clause. After determining that the plaintiffs had standing to pursue
such a claim, the court went on to interpret the rider’s scope. The court looked to the plain meaning of
“implement” and determined that the rider should be construed as prohibiting DOJ from using funds to
take actions that prevent medical marijuana states from “giving practical effect to their state laws that
authorize the use, distribution, possession, or cultivation of medical marijuana.”
The court concluded that federal criminal prosecutions inhibit the state’s attempts at providing for the
“non-prosecution of individuals who engage in the permitted conduct,” and that “at a minimum, [the
rider] prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of
individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully
complied with such laws.” However, the court noted that in order to be covered by the rider, the conduct
in question must be in “strict compliance” with state law.
McIntosh represents the established interpretation of the rider in the Ninth Circuit. The opinion, however,
has had wider practical impact, as it has been cited with approval by district courts in Michigan and
Missouri, which are outside of, and therefore not bound by, the Ninth Circuit. In addition, the U.S. Court
of Appeals for the Tenth Circuit appears to have suggested that it too concurs with the Ninth Circuit’s
interpretation.
Practical Implications of Withdrawing Previous Guidance
As previously noted, the impact of the Sessions Memorandum will likely depend on how it is interpreted
and implemented by individual U.S. Attorneys, especially with regard to state policies on recreational
marijuana that are not protected by the appropriations rider. The U.S. Attorney for the District of

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Massachusetts, for example, has stated that he “cannot []provide assurances that certain categories of
participants in the state-level marijuana trade will be immune from federal prosecution.” But regardless
of its implementation, the memorandum has highlighted the general uncertainty associated with the
marijuana legalization movement, and the ease and speed with which a change in executive branch policy
can unsettle the system. This point was made somewhat presciently in 2016 by the Ninth Circuit in
McIntosh, which noted that a new president would soon be elected whose “administration could shift
enforcement priorities to place greater emphasis on prosecuting marijuana offenses.” Even in the absence
of immediate federal enforcement efforts, the apparent increase in risk faced by marijuana businesses as a
result of the rescission of the safe harbors established by Obama-era guidance may have a chilling effect
on the industry. The mere possibility of federal marijuana enforcement has already negatively impacted
marijuana stocks, and could also reverse the recent uptick in financial institutions willing to offer services
to the fledgling industry.

Author Information

Todd Garvey
Brian T. Yeh
Legislative Attorney
Legislative Attorney

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