Journal Washington Bureau / Michael Coleman

Published on January 6, 2017

WASHINGTON – The U.S. Justice Department’s decision last week to clamp down on legal marijuana use is unlikely to cause trouble for those involved in New Mexico’s medical marijuana industry, according to experts.
Meanwhile, all four Democrats in the state’s congressional delegation said they support keeping marijuana lawful for medicinal purposes.

Attorney General Jeff Sessions on Thursday rescinded an Obama-era policy that kept federal authorities from cracking down on the pot trade in states where the drug is legal. The Justice Department will now leave it up to federal prosecutors to decide what to do when state rules clash with federal drug law.

“It is the mission of the Department of Justice to enforce the laws of the United States,” Sessions said in a statement.

But experts told the Journal on Friday that the decision appeared to be aimed more at the eight states that have moved to legalize recreational marijuana and not those, such as New Mexico, that have legalized marijuana only for medical purposes.

Current federal law prohibits the U.S. government from using tax dollars to interfere with medical marijuana programs in states such as New Mexico that have legalized it.

But that provision, which was sponsored by Republican California Rep. Dana Rohrabacher and approved in 2014, expires Jan. 19, along with legislation to fund the government.

The law protecting medical marijuana in the states will become void unless Congress renews it as part of a new spending bill. It’s not certain that will happen, but several Capitol Hill sources told the Journal on Friday that the medical marijuana issue is unlikely to trigger a fight in the upcoming showdown over keeping the government operating.

A Justice Department spokesman told the Journal on Friday that the department won’t interfere with medical marijuana operations as long as Congress keeps it lawful.

“The Justice Department will not violate any federal laws in order to pursue marijuana related prosecutions, including in the context of the Rohrabacher amendment (medical marijuana),” the Justice Department spokesman said in an email.

Unlike with medical marijuana, Congress has not passed a law protecting recreational marijuana.

Last week, Sessions rescinded the Cole Memorandum, a 2013 directive from the Obama administration stipulating that the Justice Department place a “low priority” on enforcing marijuana laws against businesses and organizations that comply with state law.

The memo stipulates that the federal government would not stand in the way of states that legalize marijuana, so long as officials acted to keep it from migrating to places where it remained outlawed, and out of the hands of criminal gangs and children.

New Mexico launched its medical marijuana program in 2007 – the law is officially called the Lynn and Erin Compassionate Use Act – and the number of people enrolled in the program has skyrocketed in recent years. There were 46,645 active patients around the state as of last month, up from 9,950 in September 2013, according to the New Mexico Department of Health.

Marissa Novel, a spokeswoman for Ultra Health, a leading medical marijuana dispenser in New Mexico, said Friday that her company is not overly concerned by the Justice Department action because providers are protected under state law.

“We don’t see that there is a whole lot to worry about,” she said. “We abide by the state law. Attorney General Jeff Sessions’ actions are troubling, indeed, and the reality remains that in the absence of federal laws that could and should be passed to resolve this industry’s legitimacy, nothing is really guaranteed.”

Morgan Fox, spokesman for the Marijuana Policy Project in Washington, told the Journal on Friday that federal prosecutors are unlikely to target medical marijuana.

“I don’t think that will happen, at least not for medical (marijuana), and particularly not for patients because state and local law enforcement aren’t going to do the job and the feds don’t have the resources to start going after patients,” Fox said. “It’s also a PR nightmare” for the Justice Department, he said.

A Pew poll released Friday showed that 61 percent of Americans believe marijuana use should be legal for both recreational and medicinal purposes. That number mirrored a 2016 Journal poll, which found 61 percent of New Mexicans also thought the drug should be legalized.

Fox predicted the Justice Department’s move to crack down on the legal pot industry could backfire on Sessions, a longtime drug warrior who has characterized marijuana as being as “only slightly less awful” than heroin.

After Sessions’ announcement Thursday, some Republicans who champion states’ rights – most notably Sen. Cory Gardner of Colorado – harshly criticized the policy shift.

“What this could result in is Congress taking a renewed interest in passing really comprehensive legislation that would allow states to determine their own marijuana polices without federal interference,” Fox said.

All four Democrats in New Mexico’s congressional delegation said Friday that they support states’ rights to legalize medical marijuana. A spokeswoman for Rep. Michelle Lujan Grisham, a Democrat running for governor of New Mexico, said the congresswoman “supports the inclusion of the (Rohrabacher) amendment into any new spending bill and is supportive of the (medical marijuana) industry.”

Sen. Tom Udall, D-N.M., supports “states’ rights on these issues,” his spokeswoman told the Journal on Friday.

Rep. Ben Ray Luján and Sen. Martin Heinrich, both New Mexico Democrats, said they have both voted to prohibit federal crackdowns on medical marijuana and supported allowing Veteran Affairs providers in states where medical marijuana is legal to recommend the plant as a potential treatment.

“I’ve looked closely at this position and met with cancer patients who told me how medical marijuana helped them cope with the pain and allowed them to eat,” Luján said.

A spokeswoman for Rep. Steve Pearce, the delegation’s only Republican and also a candidate for governor, said: “The congressman has heard many stories of the positive value for some patients in medically prescribed marijuana – often called medical marijuana. It is the job of Congress to fund the government, and tacking on legislation like this (the Rohrabacher amendment) to make or break an important spending bill is a complicating factor.”