Earlier this week, U.S. Senators Cory Gardner (R-Colo.) and Elizabeth Warren (D-Mass.) and U.S. Representatives David Joyce (R-Ohio) and Earl Blumenauer (D-Ore.) introduced the bicameral, bipartisan Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act). The purpose of the proposed Act is to protect the rights of individual states, the District of Columbia, U.S. territories, and federally-recognized tribes to regulate marijuana within their respective borders.

The introduction of this bill follows the rescission of a DOJ policy known as the Cole Memo, which was Obama-era guidance to federal prosecutors regarding marijuana enforcement. As we wrote here, rescission of the Cole Memo was characterized as an effort to restore prosecutorial discretion, albeit one that was made while also casting marijuana as a contributor to “the growing drug crisis.”  Attorney General Sessions has been vocal in his opposition to marijuana legalization and the change in policy prompted concern by many that the burgeoning industry would be targeted. 

In response to potential new enforcement, Colorado Senator Cory Gardner announced that he would block all DOJ nominations.  Colorado made recreational marijuana legal in 2014 by voter referendum, the same mechanism used in several other states where marijuana is legal.

Contrary to his attorney general’s support for federal marijuana enforcement, President Trump has reportedly given assurances to Senator Gardner that Colorado’s cannabis industry would not be impacted by the rescission of the Cole Memo. Most recently, as reported by Politico, President Trump expressed support for the STATES Act and indicated that he expects that he will sign it.

What’s Likely To Happen.  Like any piece of legislation, the bill will undergo debate and markup and may look very different when and if it is eventually brought up for a vote.  Also, the President does have a documented history of expressing support for a position and changing his mind the following week.  Notwithstanding, marijuana legalization remains popular with voters and leaving the issue to the states would be consistent with the President’s support for states’ rights generally.

For industry, it seems increasingly possible that the rescission of the Cole Memo was a unifying catalyst rather than a threat. Stay tuned here for updates on the STATES Act and our upcoming post on the real impact of the rescission of the Cole Memo.