Attorney General Barr and marijuana

On January 15, 2019, during his confirmation hearing before the U.S. Senate Judiciary Committee, Mr. Barr indicated that, if confirmed, his U.S. Department of Justice would not interfere with the interests of state-licensed cannabis businesses. Responding to questions from U.S. Senator Cory Booker (D-N.J.) and U.S. Senator Kamala Harris (D-Cal.), Mr. Barr testified:

• “My approach to this would be not to upset settled expectations and the reliance interest that have arisen as a result of the Cole Memoranda and investments have been made and so there have been reliance on it. So I don’t think it’s appropriate to upset those interests.”
• “I’m not going to go after companies that have relied on the Cole Memoranda.”
• “I thought I answered that by saying that to the extent people are complying with the state laws, you know, distribution and production and so forth, we’re not going to go after that.”

During that same testimony, though, Mr. Barr did make clear that he personally believes that (i) the existing tension between state and federal law needs to be resolved, (ii) marijuana should not be legalized federally; and (iii) the legislative branch should address issues concerning the legality of marijuana:

• “I think the current situation is untenable and really has to be addressed. It’s almost like a backdoor nullification of federal law.”
• “[W]e either should have a federal law that prohibits marijuana everywhere, which I would support myself because I think it’s a mistake to back off on marijuana. However, if we want a federal approach, if we want states to have their own laws, then let’s get there and get there the right way.”
• “But I do feel we can’t stay in the current situation. I mean, if you can imagine any kind of situation, can an existing administration and the attorney general start cutting deals with states and say we’re not going to apply the federal law? Some gun law or some other thing, we’re not going to apply it in your state. … But I think the Congress of the United States – it’s incumbent on the Congress … to make a decision as to whether we are going to have a federal system or whether it’s going to be a central federal law because this is breeding disrespect for the federal law.”

Then, on January 27, 2019, in response to formal written questions for the record submitted by U.S. Senator Dianne Feinstein (D-Cal.) and Senator Booker, Mr. Barr added:

• “I believe that the Federal Government should address whether to legalize marijuana the right way, which is through the legislative process. An approach based solely on executive discretion fails to provide the certainty and predictability that regulated parties deserve and threatens to undermine the rule of law. If confirmed, I can commit to working with the [Judiciary] Committee and the rest of Congress on these issues, including any specific legislative proposals. As I have said, however, I do not support the wholesale legalization of marijuana.”
• “As discussed at my hearing, I do not intend to go after parties who have complied with state law in reliance on the Cole Memorandum. I have not closely considered or determined whether further administrative guidance would be appropriate following the Cole Memorandum and the January 2018 memorandum from Attorney General Sessions, or what such guidance might look like. If confirmed, I will give the matter careful consideration. But I still believe that the legislative process, rather than administrative guidance, is ultimately the right way to resolve whether and how to legalize marijuana.”

Actions speak louder than words. Now that Mr. Barr has been confirmed as U.S. Attorney General, it is necessary to keep careful watch on how he and his Justice Department approach the cannabis industry and cannabis in the United States generally.

Client Alert 2019-039