'Will he or won't he?"
It's been the question looming over legalized marijuana since pot-hater Attorney General Jeff Sessions was confirmed to head the Department of Justice (DOJ) earlier this month.
Since 2012, states that took the plunge on recreational marijuana, like Colorado, have enjoyed a truce with the federal government despite the plant still being considered Schedule I under the Controlled Substances Act. The Cole memo, issued in 2013 by then-Deputy AG James Cole, spells out guidance saying the DOJ won't enforce federal law against businesses that comply with their own state marijuana laws. It's still in place for now, a holdover from the Obama years, but a new memo with different guidance could disturb that "live and let live" policy.
Hence, the "will he or won't he?"
On Thursday, Feb. 23, the president's press secretary hinted at an answer that's more ominous than reassuring. Expect "greater enforcement" against recreational marijuana, he said in response to a reporter's question about how the new AG intends to deal with conflicting state and federal law in marijuana policy.
First, though, the blustering Sean Spicer revealed his weak grasp on the legal situation.
"There's a big difference between medical and recreational marijuana," he said during the daily briefing, noting that the president "understands the pain and suffering" of the terminally ill and "the comfort that some of these drugs including medical marijuana can bring them."
OK, fine, but then Spicer referenced an appropriations rider passed in 2014 to imply that Congress has already elevated the legal status of medical marijuana under federal law. (He was mistaken about the year the Rohrabacher-Farr Amendment was enacted, but we'll let it slide.) What that rider did was forbid the DOJ from cracking down on state legal medical marijuana businesses through a defunding measure, but it did not actually do anything to differentiate medical from recreational marijuana under the Controlled Substances Act. Marijuana is marijuana, according to federal statute, no matter how it's used.
The president's sympathy for medical marijuana patients doesn't give them any real protections, but it could mean they'll see mercy not shown to those who toke just for fun.
About recreational legalization, Spicer said: "When you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing we should do is encourage people." That letting people smoke weed encourages them to pop pain pills comes from a gateway-drug argument that's been discredited. In fact, studies suggest cannabis has great potential to wean people from opioid addiction and prevent addiction in the first place.
When another reporter further pressed Spicer on the matter, he said enforcement of recreational marijuana "is something the DOJ will be looking further into."
Those anxiety-provoking comments were uttered the same day Quinnipiac University released a new poll showing a majority of Americans approve of marijuana legalization. According to the survey of 1,323 voters: 59 percent of Americans think marijuana should be legal nationwide; 71 percent of Americans would oppose a federal crackdown on legal marijuana; and 93 percent support medical marijuana.
In his confirmation hearing, former Alabama Sen. Sessions said that if the American people don't want him to enforce federal marijuana laws, they should get Congress to change them.
A bipartisan group of lawmakers launched the Congressional Cannabis Caucus this year to do just that. Following Spicer's remarks, they released this joint statement reminding the administration that more than 300 million Americans live in states with some form of legalized marijuana: "We stand ready to educate this administration on the need for more sensible marijuana policies and share the many experiences states have had with the legalization of cannabis," the lawmakers, including Colorado Rep. Jared Polis, wrote. "Together, we will continue to work in a bipartisan manner to reform our failed marijuana policies and provide a voice for Americans who have overwhelmingly voted for a more sensible drug policy."
Here in Colorado, the industry's biggest trade group denounced Spicer's statement and reiterated support for the Cole memo.
"The Colorado cannabis programs are heavily regulated, heavily taxed, and heavily enforced by state and local governments," executive director of the Marijuana Industry Group, Kristi Kelly, said in a statement. "Resources are better spent pursuing illegal cartels than state- and locally-licensed, tax-paying business operators."
She emphasized: "We see this is a states' rights issue."