Days after California began issuing licenses for marijuana sales, state leaders were preparing Thursday for possible political and legal battles in response to a decision by U.S. Atty. Gen. Jeff Sessions to rescind a federal policy that has allowed dispensaries to operate without fear of prosecution.
Officials from the administration of Gov. Jerry Brown and California Atty. Gen. Xavier Becerra said they are prepared to defend state laws including Proposition 64, the initiative approved by California voters in November 2016 that allows possession and sale of marijuana for recreational use.
“In California, we decided it was best to regulate, not criminalize, cannabis. Unlike others, we embrace, not fear, change. After all, this is 2018 not the 20th century,” Becerra said. “At the California Department of Justice we intend to vigorously enforce our state's laws and protect our state's interests.”
The state defiantly continued Thursday to process hundreds of licenses allowing pot sales, said Bureau of Cannabis Control Chief Lori Ajax.
Brown’s administration “is conferring with the California attorney general and other states in response to this action,” Ajax said. “We expect the federal government to respect the rights of states and the votes of millions of people across America and if they won't, Congress should act.”
Either way, Ajax vowed the state will act “while defending our state's laws to the fullest extent.”
Lt. Gov. Gavin Newsom, a leading supporter of Proposition 64, also vowed to fight in multiple arenas, including Congress.
"As it has on other issues, California will stand together to pursue all legal, legislative and political options to protect its reforms and its rights as a state,” Newsom said.
Some industry attorneys say there is little legal recourse for the state.
“There is nothing that I can see the state attorney general could possibly do to preclude a marijuana prosecution under federal law,” said Aaron Herzberg, an attorney for the marijuana industry. He said the U.S. Supreme Court has ruled on the matter. “The federal Supremacy Clause governs, and the federal government is entitled to maintain that this is an illegal activity, Theoretically, the federal government is free to prosecute. Their only constraint is Congress, which controls the power of the purse.”
Although the state’s legal options are limited, Jolene Forman, an attorney for the Drug Policy Alliance, said there are some steps that can be taken.
The state’s attorneys could meet with the U.S. attorneys in California and collaborate on making sure the state’s regulations meet the federal goal of protecting public safety, she said. The state could also defend its regulations if the federal government seeks to challenge them in court. State attorneys could also intervene in cases the federal government brings against state-licensed sellers and growers, arguing to the courts that the rules achieve the public safety goals of federal law.
Finally, the state could do what it has done in fighting immigration enforcement by declaring itself a sanctuary state for marijuana, including refusing to provide information and cooperate in federal investigations.
“They can make it much harder for the federal government to bring a case in California,” Forman said.
Herzberg said a key factor for the future is what happens to the federal law known as the Rohrabacher-Blumenauer Amendment, which prohibits the Department of Justice from using federal funds to interfere with state medical marijuana programs. The law is set to expire Jan. 19.
“If Rohrabacher-Blumenauer is re-authorized, which is likely but not certain, then Sessions’ pronouncement today will be more bark than bite. Regardless of the change in policy, the federal government won’t be permitted to pursue medical marijuana prosecutions unless there are gross violations by a marijuana operator, such as diversion of cannabis across state lines,” he said.