When the Attorney General Talks (Cannabis), People Listen

Like EF Hutton television commercials of the 1970s and ‘80s, when Attorney General Merrick Garland talks, people listen.  With Hutton it was about investing, for the Attorney General it is cannabis.  AG Garland most recently talked cannabis during a Senate Judiciary Committee hearing last week when Senator Cory Booker (D-NJ) asked about the Department of Justice’s (“DOJ’s”) review of cannabis and when we might expect policy changes.  Readers will recall that President Joe Biden directed the Attorney General and Health and Human Services (“HHS”) Secretary Xavier Becerra in October to begin the administrative process of reviewing current federal marijuana scheduling.  AG Garland replied that “HHS is working on the question of scientific analysis of marijuana” while DOJ is “still working on a marijuana policy.”  AG Garland concluded that he anticipates DOJ’s cannabis policy will be consistent with what he said during his confirmation in that “it will be very close” to the Cole Memorandum.  Merrick Garland, Testimony Before the Senate Judiciary Committee, Mar. 1, 2023 (02:38:46).

AG Garland opined during his confirmation that he did not think it the best use of DOJ’s limited resources to prosecute those who are complying with the laws in those states that have legalized marijuana and are effectively regulating it.  Merrick Garland, Responses to Questions for the Record to Judge Merrick Garland, Nominee to be United States Attorney General, 24.  Deputy Attorney General James Cole advised U.S. Attorneys in August 2013 that DOJ was unlikely to take enforcement action against marijuana-related businesses operating in compliance with state law unless the businesses implicated any one of eight enforcement priorities.  James M. Cole, Deputy Attorney General, Memorandum for All United States Attorneys (Aug. 29, 2013), 3. (Attorney General Jeff Sessions rescinded the Cole Memorandum and all prior DOJ guidance on marijuana enforcement in January 2018.)

Earlier in the week before the Senate Judiciary Committee hearing Representative Earl Blumenauer (D-OR) began circulating a letter for signature among House colleagues pushing AG Garland and HHS Secretary Becerra “to make available for public review and comment any evidence cited to demonstrate marijuana is more prone to drug abuse than descheduled substances already regulated at the state level.”  Rep. Blumenauer to AG Garland and Secretary Becerra, quoted in Marijuana Moment, Feb. 28, 2023.  Rep. Blumenauer, founder and co-chair of the Congressional Cannabis Caucus, concluded that marijuana should be decontrolled altogether, given its medical potential, state regulatory frameworks and “reduced harm and abuse” compared to non-controlled stimulants and depressants.  Id.

AG Garland and Rep. Blumenauer appear to have their sights set on two different end goals for cannabis.  President Biden asked AG Garland (and Secretary Becerra) to conduct an administrative review of cannabis scheduling with an eye towards rescheduling or descheduling.  AG Garland spoke of a policy consistent with the Cole Memorandum which would fall short of rescheduling or descheduling cannabis.  Any action short of total decontrol will disappoint Rep. Blumenauer and cannabis proponents.