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Myth vs Fact: The Cole Memorandum & State-Legal Marijuana

By John W. Vardaman, III

MYTH

The Cole memo amounts to a change in federal drug law, which can only be done by Congress.

FACT

The Cole memo does not, nor does it purport to, change federal marijuana laws or limit DOJ’s ability to enforce such laws. The memo merely serves as guidance to federal prosecutors with respect to federal marijuana laws based on two considerations: resource limitations, and the traditional deference to states for non-priority marijuana-related conduct. 

The memo’s extensive “savings” clause makes abundantly clear that DOJ retains full authority to enforce federal marijuana laws, even in the absence of non-priority conduct, and that in the event of prosecution the memo cannot serve as a legal defense. The only legal change regarding the enforcement of federal marijuana laws has come not from the Cole memo, but from Congress.

For the last four years, Congress has included the Rohrabacher amendment to the annual appropriations bill, which prohibits DOJ from spending federal funds to interfere with the implementation of state medical marijuana laws. The amendment was upheld by the Ninth Circuit Court of Appeals in a consolidated class of cases challenging federal prosecutions in states where medical marijuana has been legalized. 

While not perfectly aligned, the Cole memo is generally consistent with the Rohrabacher amendment with respect to limiting enforcement of federal marijuana laws. Were the Administration to rescind the Cole memo for purposes of ending state-legalized marijuana, it would be acting at odds with the express will of Congress.

MYTH

The Cole memorandum is not being followed.

FACT

Since states began legalizing marijuana, and especially since Colorado legalized recreational use of marijuana in 2013, there have been doomsday predictions that such laws would result in rampant marijuana abuse, especially by minors. In fact, since 2013, teenage use of marijuana in Colorado has actually declined. And a recent study by the National Institute on Drug Abuse found that despite the spate of state legalization initiatives, it is now harder for teens to obtain marijuana than any time since 1992.

Prohibiting the sale of marijuana to minors is one of eight priority factors in the Cole memo. The documented success in limiting teen access to marijuana is just one example of how states are complying with the memo’s requirements for state-legalized marijuana. Indeed, the federal/state interplay reflected in the Cole memo is arguably the best of both worlds – with the overhang of federal law states are highly incentivized to adhere to the memo, while the federal government retains full enforcement authority if they do not.

MYTH

If the Cole memo is rescinded states will cooperate with federal enforcement of marijuana laws.

FACT

Marijuana enforcement has historically been a partnership between state and federal law enforcement. As the Cole memo notes, “the federal government has traditionally relied upon state and local law enforcement to address marijuana activity through the enforcement of their own narcotics laws.”

It is difficult to imagine the federal-state partnership operating effectively if the Cole memo is rescinded. Ending a federal policy of deference to state legalization of marijuana is not tantamount to the re-criminalization of marijuana by the states. So long as state legalization laws remain on the books, the federal government should expect little in the way of cooperation in those states when it comes to marijuana enforcement.

MYTH

Rescinding the Cole memo will restore the primacy of, and respect for, federal marijuana laws.

FACT

If the Administration rescinds the Cole memo and attempts to end state-legalized marijuana, it is inevitable that an underground marijuana market would take its place. Legitimate businesses would be replaced by criminals and cartels; transparent and taxable revenue by illicit and untraceable proceeds; and regulated products by dangerous concoctions readily available to minors.

The comparisons to Prohibition as a similarly flawed experiment would become inescapable. Just as with Prohibition, the “re-criminalization” of marijuana would lead to widespread and notorious defiance of federal law while invigorating the worst criminal elements. Ironically, ending state-legalized marijuana in the name of reaffirming federal law could, as with Prohibition, contribute to its erosion in the eyes of the public.

MYTH

So long as marijuana remains illegal at the federal level, there is no legal justification for state-legalized marijuana.

FACT

States that have legalized marijuana have done so upon the legally accepted notion of reasonable reliance – in this case, the federal government’s deference to state laws legalizing marijuana. Over the past twenty years, a majority of states have legalized some form of marijuana with the full knowledge and assent of the federal government. Such sustained acquiescence has legal consequences.

Related to reasonable reliance is the doctrine of promissory estoppel, which discourages conduct that unreasonably causes foreseeable economic loss because of action or inaction induced by a specific promise. Under this theory, the federal government is estopped from overriding state marijuana laws because of the significant economic loss it would cause to states and businesses that reasonably relied upon its decades long deferment to such laws.

At some point the consistent application of federal policy establishes precedent that binds the federal government as an entity, irrespective of the policy preferences of a new administration.

MYTH

Rescinding the Cole memo would have no impact on the broader Trump agenda.

FACT

On issues such as healthcare, education, and the environment, federalism is likely to be the legal underpinning for many priority items of the Trump presidency. State-legalized marijuana is currently the most high-profile example of federalism in action, with states deciding for themselves whether to legalize marijuana free of federal interference.

How the Trump Administration handles state-legalized marijuana could have significant implications for other issues predicated on federal deference to state action. Rescinding the Cole memo would send a signal that the Trump Administration’s respect for federalism depends upon whether states achieve a certain preferred outcome.

Such selective federalism conflicts with the notion that state laws should be respected regardless of whether they align with the policy preferences of the administration. In the case of state legalized marijuana, undermining the principle of federalism could inflict collateral damage on other Trump agenda items predicated on the same principle.

MYTH

There is no political downside to rescinding the Cole memo.

FACT

Over half the states and the District of Columbia have adopted some form of legal marijuana, and collectively they constitute over 60% of Congress. State-legalized marijuana enjoys bi-partisan support, appealing to both liberal Democrats and libertarian Republicans. The fact that medical marijuana recently passed with over 70% of the vote in Florida underscores how this issue transcends traditional blue-state/red-state calculations.

In contrast to the growing chorus in favor of preserving state-legalized marijuana, there is no real political constituency in support of ending it. The reality is that voters who most oppose marijuana tend to be least affected by it, precisely because their states have opted against legalization. Rescinding the Cole memo would alienate far more voters in states that have legalized marijuana than it would energize voters in states that have not.

MYTH

The state-legalized marijuana market can be shut down with minimal disruption.

FACT

A multi-billion dollar, nationwide industry cannot be summarily dismantled without far reaching consequences.

Jobs: State-legalized marijuana employs tens of thousands of people across the country in diverse fields such as agriculture, medical research, technology, and financial services. The collective loss of those jobs due to a Trump Administration policy change would make a mockery of the highly touted 1,000 jobs saved at Carrier Air Conditioning.

Taxes: Many states have dedicated state-legalized marijuana tax revenues for badly needed services such as education and health care. At a time when state and local governments are facing significant budget shortfalls, marijuana offers the promise of a new and consistent revenue stream that cannot be removed without dramatic disruption.

Medical Users: Millions of people across the country regard marijuana as the only source of medical relief for themselves, their elderly parents, and sometimes their children. Ending state-legalized marijuana would force these people into having to choose between foregoing medical treatment or risk criminal exposure and sanction.

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About the author:

John W. Vardaman, III is EVP and General Counsel of Hypur Inc. John worked at the U.S. Department of Treasury and U.S. Department of Justice on AML/BSA policy and enforcement, and was a contributing author of he Cole Memorandum.

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