Pro-pot lawmakers in the nation's capital spent much of last year fighting behind the scenes to protect their state's legal marijuana industries, but now the cannabis fight is out in the open after Attorney General Jeff Sessions announced he's unwinding the Obama-era guidance that directed U.S. Attorneys to not go after marijuana businesses in states that legalized it.
"It was a surprise," Representative Jared Polis (D-CO) tells Rolling Stone. "It leaves the liberty of consumers up to 93 U.S. Attorneys who on a whim could engage in enforcement action against activities that are legal and regulated by states."
Lawmakers of all stripes are now searching for their best outlets to combat the actions of the attorney general who they see as rogue on this issue – just two years ago, then-candidate Donald Trump said marijuana laws should be left to the states. With nearly 29 states and the District of Columbia having legalized some form of marijuana, one would think there would be enough bipartisan consensus to pass a federal bill to tie Sessions' hands, but, according to Polis, "the legislative process is very slow, so we need to do something sooner."
The hangup is that marijuana remains a Schedule I narcotic at the federal level, which puts it in the same category as heroin and LSD. If Congress doesn't change the law, Sessions has a federal statute at his disposal that lawmakers fear he'll wield in a variety of ways. That's why many lawmakers are attempting to undercut the attorney general by penning letters directly to the president that gently urge him to remember his campaign pledge, while they're also working on numerous other legislative fronts to forestall any federal intrusion in state-sanctioned marijuana businesses.
But it's not just Democrats leading the charge. Republicans have historically placed states' rights above encroachment by the federal government. So a handful of Republicans have been left scratching their heads now that a Republican administration is attempting to clamp down on their local, legal industries.
"That's what we just don't understand. That's what I think the ambiguity is right now that we need some clarification on," Senator Cory Gardner (R-CO) tells Rolling Stone. The lawmaker is furious with Sessions because during his confirmation Gardner was assured by his former Senate colleague from Alabama "that marijuana would not be a priority for this administration," according to Gardner.
After the announcement from Sessions, Gardner vowed to use any procedural tool at his disposal to block Department of Justice nominees until the attorney general stands by his commitment to not prioritize marijuana prosecutions. Last week Gardner sat down with Sessions to reiterate his demands face to face, but he says more meeting are needed and he hopes to have other lawmakers with him next time in order to get Sessions to see the scope of opposition to his prohibitionist stance.
"I don't think his position has changed. My position hasn't changed at this point," Gardner tells Rolling Stone. "I look forward to a resolution."
Some on Capitol Hill are now arguing that Sessions' unilateral action may have actually driven a stake through the heart of his cause, because federal lawmakers who had been relatively quiet on marijuana are now speaking out because they fear the federal government is encroaching on their constituents.
"It's a big plus for our efforts that the federal government is now aware that our constituents have been alerted," Representative Dana Rohrabacher (R-CA) told reporters earlier this month. "We can be confident we can win this fight, because this is a freedom issue."
Now other lawmakers are coming out of the woodwork and voicing their anger at the attorney general. On Wednesday evening, a bipartisan group of lawmakers took to the floor of the House of Representatives to both air their anger at Sessions while also calling for Congress to pass marijuana-related bills, like one that would allow marijuana businesses to access tax credits and deductions.
"We must work to afford all businesses selling legal products the opportunity to make appropriate deductions and contribute to our economy and create jobs," Representative Carlos Curbelo (R-FL) said on the floor. "The best ally that those who are operating illegally, the drug cartels, the drug traffickers – who do not pay any taxes, who target children – the best ally they have are the policies that the attorney general has embraced."
This week, marijuana advocates were able to score a win by keeping an amendment in the short-term spending bill that forbids the Department of Justice or the Drug Enforcement Administration from using federal funds to go after locally legal medical marijuana shops and growers, but that language still doesn't extend to the eight states and the District of Columbia that have legalized recreational marijuana. Representative Don Young (R-AK) and Representative Barbara Lee (D-CA) have teamed up to introduce a bill that extends those protections beyond just the medicinal marijuana industry.
The attorney general has vowed to uphold federal law, so some of his allies are wondering if he's pointing out the hypocrisy of lawmakers in both parties who have failed to take up marijuana legislation even as the states have revealed a groundswell of support for cannabis.
"I'll contemplate the possibility that he's crazy like a fox," Representative Tom Garrett (R-VA), who served as a prosecutor for nearly a decade, tells Rolling Stone. "We've got laws on the books and this is certainly the case here, but we've got others, where we just won't enforce them uniformly. And that's a miscarriage of justice on its face. Justice is blind or else it's not justice."
Garrett's quietly pressuring party leaders to bring marijuana legislation to the floor as a standalone bill. While there are many options he could likely support, he's sponsoring a bill that's also endorsed by Independent Senator Bernie Sanders that would remove marijuana from the list of controlled substances. That would end the prohibition on pot and put it in the same category as the likes of alcohol and tobacco. Garrett says their bill is in line with what Sessions has said should happen.
"On the front end he said, 'If you don't like the law change it,'" Garrett says. "We've looked the other way on enforcement for a decade. And that's because there's no public will to enforce this law, which should hasten action from Congress. Why aren't we acting? We lack political courage?"
Sessions' action does seem to have awoken a sleeping giant on Capitol Hill: The growing number of Democrats and Republicans who represent states whose voters have approved weed in one form or another. That's why these pro-pot lawmakers think Sessions may have overplayed his hand.
"I'm hopeful that this action is going to have a powerful reaction," Senator Cory Booker (D-NJ) tells Rolling Stone. "This is a movement that's going to happen, and I'm glad to see I've got partners on the Republican side of the aisle that are very animated on this issue."