Thanks to a majority of Nevada voters, recreational marijuana will become legal in the state on Jan. 1.
But because Nevada is still part of the United States of America, and because the Congress of the United States has declared marijuana to be a controlled substance, it remains illegal under federal law.
And the conflict between these two competing facts will become more intense on Jan. 20, when Donald J. Trump is sworn in as president and his pick for attorney general, U.S. Sen. Jeff Sessions of Alabama, looks to take over the Justice Department.
President Obama’s DOJ has taken a hands-off approach to enforcing federal drug laws in states that have legalized recreational or medical marijuana.
But there’s no guarantee that Sessions — who has a much more conservative view of marijuana use — is going to take the same position. And that has people who rushed to get into the marijuana business (recreational and otherwise) nervous.
According to a story in the Review-Journal this week by Colton Lochhead, local marijuana business owners think Sessions’ opinions are outdated.
“His viewpoints are archaic at best,” Terra Tech Corp. CEO Derek Peterson told Lochhead. “I think the fear is a little bit irrational.”
But that’s just the thing: It doesn’t matter if Sessions’ views are old-fashioned. It doesn’t matter if his concerns are rational or not. The fact is, the United States Code classifies marijuana as a Schedule I controlled substance. Until that’s changed, the opinions of Jeff Sessions, Derek Peterson or anybody else don’t really matter.
Some marijuana entrepreneurs are praying that they can make a 10th Amendment argument to Sessions about legalization, saying states should have the power to decide whether marijuana is legal within their borders.
Putting aside the reality that both conservatives and liberals inconsistently apply the 10th Amendment, depending on the issue, Congress long ago decided to occupy the field of drug regulation. It’s inconceivable the federal government would now give up such authority.
Well, then, how about the populist argument?
“If 60 percent of the country believes that this [marijuana] should be legal, I would hope that a person wouldn’t put his own personal beliefs ahead of what his constituents would like,” said Armen Yemenidjian, founder of Essence Cannabis Dispensary, according to the R-J’s story.
Hold on a minute: This is not an example of someone trying to use legislation to impose a personal viewpoint on the populace. This is the highest law enforcement official in the land dealing with an existing federal law. One could argue that Sessions has an obligation to enforce the marijuana laws from coast-to-coast, regardless of local rules.
Maybe the free-market approach?
“A lot of people made huge investments” in marijuana businesses, Peterson told the R-J. “And frankly, business is slow. … This is lifeblood for us.”
But any savvy business operator must realize that if he peddles a product that is outlawed under federal law, a state legalization vote is not an entirely safe harbor. Plenty of people considered getting into what they assumed would be a lucrative market, but rejected the idea because of uncertainty regarding the competing state and federal laws on the subject. Anybody who went forward in the current landscape knowingly rolled the dice — and sometimes the dice come up with bad numbers.
Views on marijuana are changing, with voters increasingly declaring that the drug should be legal. But until those voters also bring pressure to bear on Congress, marijuana remains illegal — and no business that sells it will remain entirely free of fear that federal enforcement will bring down their enterprise.
Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.