Alaskan delegation pushes parallel cannabis bills
Where will state and federal law collide when it comes to marijuana laws?
That’s the question Sen. Lisa Murkowski put to Deputy Attorney General Rod Rosenstein June 13 during a Senate appropriations subcommittee meeting.
Marijuana businesses largely cannot access the banking system, Murkowski noted, and another problem lurking on the horizon for states that have legalized marijuana and now collect taxes on cannabis businesses is that the “U.S. Postal Inspection Service has suggested that marijuana tax payments sent to the Alaska Department of Revenue are subject seizure,” she said.
The Department of Justice also wants to eliminate the current fiscal year appropriations language prohibiting federal interference with medical marijuana laws.
“So, I am concerned, and I’m speaking for a lot of people in my state who are worried about the inconsistency between the state marijuana laws as well as the federal policy,” she said to Rosenstein.
Rep. Don Young also is focused on federal policy right now as a member of the Congressional Cannabis Caucus. Even though he doesn’t personally advocate for the use of marijuana, he views the matter as a states’ rights issue.
Two days after Murkowski’s questioning of Rosenstein, she and Young introduced parallel bills in the Senate and House titled the Compassionate Access, Research Expansion and Respect States Act, or CARERS, would amend federal law to allow states to set their own medical marijuana policies.
The Senate legislation was also sponsored by Democrats Kirsten Gillibrand of New York, Cory Booker of New Jersey and Al Franken of Minnesota, along with Republicans Rand Paul of Kentucky and Mike Lee of Utah.
The CARERS Act would allow states to import cannabinoid oil, or CBD, which is currently prohibited and Alaska marijuana retailers ran afoul of the law in the form of state enforcement raids and seizures of products they believed had legally been brought into the state.
So far, the Department of Justice has not taken the position that state marijuana laws are completely preempted by the Controlled Substances Act, or CSA, the laws that establish U.S. drug policy. Under that act, marijuana is listed as a Schedule One controlled substance, the same class as heroin, LSD and ecstasy.
Murkowksi cites the Cole Memo, written by former Deputy Attorney General James Cole in 2013 that essentially states that jurisdictions with legalized marijuana are less threatening to federal priorities if they have implemented “strong and effective regulatory and enforcement systems to control marijuana growth and distribution.”
She argues Alaska has enacted just such a set of laws.
The Cole memo gives wide discretion on whether to prosecute state legal marijuana enterprises but hinted that it’s probably not a prudent use of federal resources to focus enforcement on state legal businesses.
“I don’t know if you are headed in that direction — the Cole Memorandum suggests deference to strong state laws but we’re not seeing the federal government doing much to ensure that those strong state laws are enforceable,” Murkowski told Rosenstein. “So, the bigger question is, where are we heading with marijuana?”
The first opportunity to vet that question occurred in a Commerce, Science, Justice Appropriations Subcommittee hearing with Rosenstein testifying.
“It’s a difficult question because we do have a conflict between federal law and the law in some states,” he said. “…I’ve talked with Chuck Rosenberg, the administrator at DEA (Drug Enforcement Agency), and we follow the law and the science. From a legal and scientific standpoint, marijuana is an illegal drug.
“It is properly scheduled under Schedule One. Jim Cole tried to deal with it in the memorandum and at the moment it is still in effect. Maybe there will be changes to it in the future, but we are still operating under that policy.”
He concluded, “As (former) Attorney General (Loretta) Lynch said at her confirmation hearing in January 2015, she explained we’re responsible for enforcing the law, it is illegal, and that is the federal policy with regard to marijuana.”
Murkowski wasn’t satisfied with the Rosenstein’s response, she said. She will be talking with other senators from states who have more broadly legalized marijuana as to whether legislation to put the federal government on the same page as states is viable.
Nine states voted to legalize marijuana for recreational use, including Washington DC. Another 20 states have legal medical-only marijuana laws.
The Cole memo states that the DOJ will not enforce federal marijuana laws against those compliant with strong state regulatory regimes, Murkowski aide Karina Petersen wrote in an email.
“The (Attorney General Jeff) Sessions’ Justice Department has not withdrawn the Cole Memorandum although changes may be possible. The premise of Sen. Murkowski’s comment to Deputy Attorney General Rosenstein last Tuesday (June 13) was that the federal government is on the one hand supportive of state regulatory regimes and on the other standing as an obstacle to the effective administration of those strong state regulatory regimes.”
Murkowksi believes a legislative response may be required to put the federal government on the same page.
“But that legislative response would come more easily if the administration were working with states like Alaska rather than working against our state,” Petersen said.
Murkowski was hoping that the deputy AG would make a commitment to work with Alaska and others similarly situated to make this all work.
“Instead the federal government seems to be moving in the other direction. Not helping states like ours clear impediments like access to the banking system or ensuring tax payments can be sent through the mail,” Petersen said.
“It is also trying to turn the clock back on the established congressional policy prohibiting federal interference with state medical marijuana regimes. The CARERS Act, which Sen. Murkowski has co-sponsored, establishes a clear policy of federal non-interference with state medical marijuana laws.”
Through a staff level marijuana working group, Murkowski plans to discuss the problem with other offices to determine whether legislation fully eliminating federal obstacles to broader state marijuana laws is viable.
At the moment, Murkowski doesn’t believe it is viable or advisable to pursue legislation completely legalizing marijuana on a federal level.
A number of states don’t want to go where Alaska has gone and their decisions are also deserving of respect, Murkowski has said.
There are numerous bills pertaining to wholesale marijuana reform in the House of Representatives this year and Young is involved in many of them.
“I strongly believe in this issue as a matter of states’ rights,” Young said upon launching the Congressional Cannabis Caucus. “Because of the conflicts between Federal and State law, marijuana-related issues are no longer theoretical—they are real, and they are affecting real people in Alaska and across the country.”
The issues in the House he is most focused on are banking, the intersection of legal marijuana, second amendment rights, and the effect on tribal issues.
Young has sponsored bills to require the federal government to respect state laws legalizing marijuana, to remove it from the Schedule One status, to allow financial institutions to do business with the marijuana industry, allow Veterans Affairs doctors to prescribe marijuana in states where it is legal, and to allow marijuana businesses to use the same tax deductions as other small businesses.
Perhaps the most immediate relief for marijuana-legal states is in the 2018 fiscal year spending bill.
Language inserted there would bar the DOJ from using federal resources to prosecute individuals who are otherwise in compliance with their state laws, said Matt Shuckerow, Young’s spokesman.
“It is extremely likely that the amendment will once again be included in the FY 18 spending bill, given that it has be enacted into law — in a bipartisan manner — since 2014,” Shuckerow said.