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

January 16, 2018

The title of this post is the title of this “Legal Sidebar” publication authored by Todd Garvey and Brian Yeh with the Congressional Research Service. The piece serves as a useful short primer on federal marijuana laws and policies right now, and it concludes this way:

[T]he 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 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.

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Federal Marijuana Laws, Policies and Practices and Who decides