States that have legalized medical marijuana have become sitting ducks for Attorney General Jeff Sessions. That's the reality that cannabis patients, entrepreneurs and advocates woke up to this morning after the federal government shutdown last night.
Even though 30 states have legalized medical marijuana, federal cannabis prohibition is still in effect. The only thing that has stopped Sessions from raiding those states up to this point is a rider in the federal budget (called the Rohrabacher-Blumenauer Amendment), which prevents the DEA from spending a single penny on prosecuting state-legalized medicinal cannabis industries.
That amendment isn't law though. It must be renewed with each federal budget. So when Congress failed to pass the latest spending bill last night, the Rohrabacher-Blumenauer Amendment expired. That means Sessions has the legal authority as well as the money to go after all 30 legal states.
Or in 'Harry Potter' terms, Congress just freed a marijuana-hating house elf by giving him a 'Reefer Madness' t-shirt.
Can a Crackdown Happen During a Shutdown?
Yes, it can.
As Tom Angell of Marijuana Moment has noted, certain parts of the federal government are allowed to continue operating despite a shutdown. Those include the DEA and federal prosecutors, which makes sense because you don't want to drop important investigations or indefinitely postpone trials just because Congress can't agree on a spending bill. Suspending the justice system could result in America becoming the dystopian version of Hill Valley from 'Back to the Future II.'
Unfortunately, that means Attorney General Sessions can also mobilize the DEA as well as those federal prosecutors for a crackdown that could lead to cannabis entrepreneurs, advocates and even patients getting arrested for their involvement with the illegal industry.
The Crackdown's Unlikely
Prosecuting legal states could be disastrous for Attorney General Sessions. Although he has the power and resources to do it, the window opened by the shutdown is likely to be very brief. The longest government shutdown to date lasted only 21 days. Three weeks isn't enough time to eradicate thriving industries in more than half the country, but it is long enough to cause months upon months of headaches for lawmakers because several jurisdictions have vowed to sue the federal government if Sessions launches a crackdown.
On top of all that, the crackdown probably won't accomplish much. When Congress finally agrees on the next spending bill, it will likely include an extension of the Rohrabacher-Blumenauer Amendment since the House passed it and the Senate didn't oppose the rider. It was disagreement over immigration, not marijuana policy that brought about the shutdown.
The restored amendment would halt prosecutions pursued during the policy gap, as David Hodes of Leafly has noted. That means the raids would be stopped and prosecutions against legal states would be suspended. So Sessions would end up wasting a lot of time and taxpayer money on cases that would not reach the courts.
Basically, Sessions will look like the mail-room clerk that went mad with very little power on an episode of 'Kids in the Hall.'
Why All That Might Happen Anyway
It doesn't make sense to launch a crackdown that would last less than a month and result in more lawsuits than convictions. So in normal circumstances, it would be highly unlikely. But unfortunately, we're not dealing with an attorney general who is familiar with common sense when it comes to marijuana, which Sessions insists is "only slightly less awful" than heroin.
Sessions also scoffs at the idea that cannabis has medicinal benefits, and he once said he thought the KKK "were okay until I found out they smoked pot." So he probably won't be deterred by the numerous Congresspeople of both political parties that have spoken out against a cannabis crackdown, nor is he likely to be swayed by the fact that the majority of Americans support marijuana legalization, probably won't stop the attorney general.
Sessions is basically the drug war's Captain Ahab, and he doesn't seem to care who or what gets destroyed by his reckless hunt for the great green whale that is marijuana legalization in his eyes. But if he does pursue the crackdown and advocates successfully sue the federal government in retaliation, Sessions will look less like Ahab and more like Captain Quint from 'Jaws.'