After being in continuous session since Monday arguing over President Donald Trump’s Cabinet nominees, the US Senate voted Wednesday evening to confirm Sen. Jeff Sessions (R-Ala.) as the nation’s next attorney general.
As the country’s top law enforcement officer, Sessions will lead the Justice Department and set federal enforcement priorities across the United States. Eventually that may mean confronting the tension between states that have legalized cannabis and federal law that continues to prohibit it.
On a party-line, 52–47 vote, the Senate approved the nomination shortly after 7:20 p.m. local time. Not a single Republican voted against the nomination, and only one Democrat, Sen. Joe Manchin (D-Va.), One senator—Sessions himself—voted present. The full vote is available online.
Most senators who spoke out against Sessions’ confirmation in the hours leading up to the vote focused on the Alabama Republican’s record on civil rights and equal justice. But several senators also questioned Sessions’ stance on cannabis, which Sen. Brian Schatz (D-Hawaii) derided as “out of the mainstream.” In April of last year, at a Senate hearing on state cannabis laws, Sessions testified that “good people don’t smoke marijuana,” one of a handful of Sessions’ past statements that has given pause to the cannabis community.
“Tell that to the cancer patients,” Schatz told a mostly empty Senate floor on Tuesday night.
Sen. Elizabeth Warren (D-Mass.), before she was forced to stop speaking Tuesday night, noted Sessions’ past support for “aggressively prosecuting marijuana offenses.” And Sen. Diane Feinstein (D-Calif.), hardly an outspoken cannabis proponent despite hailing from Northern California, said she supports enforcing drug laws but believes there are “difficult questions about what actions the Justice Department would take in states that have legalized marijuana.”
Citing input from constituents in his home state, Sen. Jon Tester (D-Mont.) said he doubted Sessions’ commitment to individual privacy rights. While Tester primarily referenced Sessions’ votes on the Patriot Act, the George W. Bush-era surveillance measure, he said he’s concerned about what those votes indicate about Sessions’ commitment to individual liberties.
“We need an attorney general willing to fights for our rights and freedoms,” Tester said.
In fairness, Sessions hasn’t yet said how he plans to handle state-legal cannabis as AG. He was noncommittal in response to questions during the confirmation process, saying only that he would “review and evaluate” the current situation.
“While I am generally familiar with the Cole memorandum, I am not privy to any internal Department of Justice data regarding the effectiveness of the policies contained within that memorandum,” he wrote of a crucial Obama-era Department of Justice document that established a policy of not interfering with state cannabis laws.
“Congress made the possession of marijuana in every state, and the distribution of it, an illegal act,” he told senators. “If that’s something that’s not desired any longer, Congress should pass a law to change the rule.”
For their part, Senate Republicans urged that Sessions be confirmed in order to allow President Trump to fill his Cabinet. They downplayed Democrats’ concerns over civil rights as the product of political theater and highlighted his decades in public office. Sen. Mike Enzi said he was “disturbed” by some of the senators’ criticisms during the process, saying he wondered if “even a saint” could be confirmed.
Debra Borchardt, Forbes contributor
Across the country, cannabis advocates have been split on what the Trump administration might mean for patients and consumers. Some say fears are overblown, pointing to Trump’s past statements professing support for states’ rights and his tepid approval of medical marijuana. They argue it would be foolish for the Trump administration to crack down on cannabis at a time when public support for legalization is higher than ever. And even if the feds do move against state programs, many doubt the Justice Department has the resources to effectively rein in a multibillion-dollar industry quickly spreading across the country.
But others note that many of the president’s appointees—such as US Rep. Tom Price, Trump’s pick for Health and Human Services Secretary—have taken strong stances against legalization. If confirmed, Price would oversee key regulatory agencies such as the Food and Drug Administration, National Institutes of Health, and Substance Abuse and Mental Health Services.
“It’s hard to imagine these two won’t convince Trump to see things their way,” Forbes contributor Debra Borchardt wrote Wednesday of Price and Sessions. “The president already believes that all drugs are the reason behind a lot of crime today.”
Business owners find themselves in a precarious position. “The cannabis industry will be taking some time to adjust to the new administration in general and Sessions’ approach to law enforcement in particular,” said Micah Tapman, managing director at Canopy, a cannabis industry venture fund.
“We expect a bit of a slowdown with investment and new ventures as investors and entrepreneurs consider risks and add mitigating solutions,” he told Leafly via email. “We also expect to see a galvanized lobbying effort by the industry as a whole as companies fight against possible regression.”
Tapman and others called on Congress to expand federal protections for state cannabis laws. “We would like to see an extension and expansion of the Rohrabacher–Farr amendment and Congressional action on banking restrictions,” he said. The Rohrabacher–Farr amendment, a federal spending provision, currently prevents the Department of Justice from targeting state-legal medical marijuana operations. It’s set to expire in April.
Robert Capecchi, director of federal policies for the Marijuana Policy Project, said his group was cautiously optimistic that Sessions would “refrain from interfering” in state cannabis laws. “When asked about his plans for marijuana enforcement,” Capecchi said, “Attorney General Sessions said he ‘echo[es]’ the position taken by Loretta Lynch during her confirmation hearings. He repeatedly acknowledged the scarcity of enforcement resources, and he said he would ensure they are used as effectively as possible to stop illicit drugs from being trafficked into the country.”
In Washington state, lawmakers are already working to build a buffer around the state’s cannabis system. A bill currently before the Legislature would prevent local officials from cooperating with the federal government to impede or interfere with the state program. Gov. Jay Insee, a Democrat, said last week he’ll do what he can to convince the White House that the state’s experiment with legalization has been a success. But that hasn’t been enough to ease fears.
“It is extremely difficult for anyone to pretend we can predict what the Trump administration is going to do,” state Sen. Reuven Carlyle (D-Seattle) told the News Tribune.