Sessions rescinds Cole Memo; urge Congress to make marijuana policy a states’ rights issue

Last update: January 5, 2018


On January 4, 2018, the Department of Justice announced that it was abolishing existing protections that prevent federal prosecutors from interfering in states that have decided to legalize marijuana. In doing so, Attorney General Jeff Sessions has indicated that he plans to use the power of the federal government to attack the ability of states to decide their own laws, running roughshod over states’ rights and willfully ignoring the votes of millions of Americans. In every state where marijuana is legal, Americans voted to approve legalization at the ballot box. This is a direct attack on the will of the people.

A majority of Americans support legalization, and Sessions has decided to simply ignore their views, allowing his personal politics to determine this monumental shift in policy. This decision may encourage federal raids on licensed, regulated, and tax-paying businesses that employ thousands of Americans and generate hundreds of millions of dollars in tax revenue for public services including substance abuse treatment programs and new school construction.

Since the announcement, there has been bipartisan shock and outrage. Republican Senators like Cory Gardner and Lisa Murkowski both spoke out against Sessions’ decision, with Sen. Gardner going so far as to say he will “be holding all nominations for the Department of Justice” until we get answers from the attorney general. Democrats have been unified in their resistance, with Sen. Cory Booker calling it “an attack on our most sacred ideals.” Democratic Leader in the House Rep. Nancy Pelosi stated, “Sessions’ decision bulldozes over the will of the American people and insults the democratic process.” We applaud all members of Congress who have spoken out against Jeff Sessions’ decision.

The only sure way to prevent federal action against legal marijuana in states across the country is for Congress to finally address the glaring contradiction between state and federal law on this issue. Contact your Senators and Representative today to let them know that the time has come to recognize that states should determine their own marijuana policy. This is the year that we can finally convince Congress to listen to the voters that chose to tax and regulate marijuana, rather than continue with the failed policy of prohibition.

Current marijuana laws in the United States

Eight U.S. states and the nation’s capital have made marijuana legal for all adults, and a total of 29 states, the District of Columbia, Guam, and Puerto Rico allow for comprehensive public medical marijuana programs.

Contained within the federal budget are provisions to protect a state’s right to responsibly regulate medical marijuana programs. Since December 2014, the Rohrabacher–Farr amendment has prohibited the Justice Department from spending funds to interfere with the implementation of state medical marijuana laws. This amendment must be renewed each fiscal year in order to remain in effect and has been included in a series of spending bills approved in 2016 and 2017, with the most recent extension expiring on December 8, 2017.

On the federal level, the House has voted twice to end the crackdown on medical marijuana, demonstrating bipartisan support for real federal marijuana policy change.

The president himself recognizes the benefit of these reforms. While on the campaign trail, Donald Trump was asked his view on state marijuana policy reform, and he consistently said it should be a states’ rights decision. There is now more momentum than ever for ending marijuana prohibition. Take a look at MPP’s 2017 strategy here!

Ask your members of Congress to end federal marijuana prohibition.

Legislation we are tracking in the 115th Congress


Protecting the Principle of Federalism in Marijuana Policies: Rep. Dana Rohrabacher (R-CA) reintroduced H.R. 975, the Respect State Marijuana Laws Act, with strong bipartisan support. This legislation would modify the federal Controlled Substances Act to protect anyone acting in compliance with state marijuana laws from federal prosecution and resolve the conflict between state and federal marijuana laws, ensuring states can determine their own policies. Additionally, Rep. Tom Garrett (R-VA) introduced H.R. 1227, the Ending Federal Marijuana Prohibition Act of 2017, also with bipartisan support. This legislation, originally introduced in 2015 into the Senate by Sen. Bernie Sanders (D-VT), removes marijuana from the Controlled Substances Act and deletes all marijuana-specific offenses found in that act. It also prohibits the shipping or transportation of marijuana if the recipient would be in violation of state marijuana laws.

Taxing and Regulating Marijuana: S. 776, the Marijuana Revenue and Regulation Act, and H.R.s 1823 and 1841, the Marijuana Tax Revenue Act and the Regulate Marijuana Like Alcohol Act, seek to replace marijuana prohibition with a comprehensive licensing and oversight system to tax and regulate the production, distribution, and sale of marijuana. The Marijuana Revenue Act is sponsored by Sen. Ron Wyden (D-OR), the Marijuana Tax Revenue Act is sponsored by Rep. Earl Blumenauer (D-OR), and the Regulate Marijuana Like Alcohol Act is sponsored by Rep. Jared Polis (D-CO).

Medical Marijuana for Veterans: Rep. Earl Blumenauer (D-OR) introduced the Veterans Equal Access Act, H.R. 1820, which would expand access to medical marijuana to our national heroes by removing the gag order on VA health care providers preventing them from discussing and recommending participation in state medical marijuana programs with their patients.

Easing the Tension Between State and Federal Law: The Responsibly Addressing the Marijuana Policy Gap Act of 2017, introduced in the Senate by Sen. Ron Wyden (D-OR) and in the House by Rep. Earl Blumenauer (D-OR), exempts individuals and entities from federal marijuana laws if they are acting in compliance with state or tribal law, allows for expungement of certain federal marijuana convictions, and addresses multiple areas of federal law that currently penalize individuals for activities related to marijuana activity that is legal under the state law.

Click here for a summary of federal marijuana policy reform efforts introduced in the 115th Congress.

Timeline of marijuana reform in the United States

1850: In the United States, marijuana was sold over the counter and was commonly used as treatment for sundry illnesses including, but not limited to, cholera, alcoholism, opiate addiction, and convulsive disorders.

1936: Every state had passed a law to restrict possession of marijuana, eliminating its availability as an over-the-counter drug.

1937: The Marihuana Tax Act of 1937 was passed to prohibit all non-medical use of marijuana in the United States. However, it also limited medical use due to fees and regulatory restrictions that imposed a significant burden on doctors prescribing marijuana. The American Medical Association opposed the Marihuana Tax Act of 1937 without success.

1970: On October 27, 1970, the Comprehensive Drug Abuse Prevention and Control Act was enacted. Title II of the act – the Controlled Substances Act – established categories varying from Schedule I (the strictest classification) to Schedule V (the least strict). Marijuana was placed in the Schedule I category, thereby prohibiting its use for any purpose.

1995: MPP was founded in January 1995 and is the largest organization in the U.S. that’s focused solely on ending marijuana prohibition.

1996: California voters approved Proposition 215 to legalize medical marijuana. However, the Clinton administration opined its opposition to the proposition and threatened to revoke the prescription-writing abilities of doctors who recommended or prescribed the drug.

2000: In response to the Clinton administration’s aversion to Proposition 215, a group of physicians challenged this policy as a violation of First Amendment rights, and in September 2000 prevailed in the case Conant v. McCaffrey, which allows physicians to recommend – but not prescribe – medical marijuana.

2005: During the Bush administration, agents were enforcing federal laws against state-operated medical marijuana cultivators and patients. In June 2005, the Supreme Court ruled in favor of the federal government’s ability to enforce federal law in states that have legalized medical marijuana in the case Raich v. Gonzales.

2009: In the first term of the Obama administration, Attorney General Eric Holder stated that only medical marijuana providers “who violate both federal and state law” would be targeted for prosecution. Deputy Attorney General David Ogden issued a memorandum with guidelines for federal enforcement while also largely affirming the earlier-stated hands-off approach for state-legal medical marijuana activities.

2011: In response to raids by the federal government and in an attempt to clarify the Obama administration’s stance on medical marijuana, Deputy Attorney General James M. Cole issued a memorandum specifically noting that the “Ogden memo” protections applied only to individuals and not commercial operations.

2013: In August 2013, the U.S. Department of Justice issued a second Cole Memo that offers guidance to prosecutors and law enforcement on where to focus marijuana enforcement efforts. These are priorities to prevent distribution of marijuana to minors; to prevent marijuana revenue from funding criminal enterprises, gangs, or cartels; to prevent marijuana from moving out of states where it is legal; to prevent use of state-legal marijuana sales as a cover for illegal activity; to prevent violence and use of firearms in growing or distributing marijuana; to prevent drugged driving or exacerbation of other adverse public health consequences associated with marijuana use; to prevent growing marijuana on public lands; and to prevent marijuana possession or use on federal property. You can read this memo, which is still in place today, here.

2014: The Rohrabacher-Farr Amendment, included in the spending bill, prohibits the Justice Department from spending funds to interfere with the implementation of state medical marijuana laws. The amendment has been subsequently included in a series of spending bills approved in 2016 and 2017, with the most recent extension expiring on December 8, 2017.

Click here to see MPP’s history of accomplishments on the state level.