AG Sessions Removes Obama Administration Regulation Relating To Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions released a policy that guides local U.S. Attorneys to prosecute federal criminal offenses for cannabis law offenses, even in States where recreational and medicinal marijuana usage has been authorized by the voters. The new policy directive is problematic for a number of reasons, and ought to create worry for individuals who use medical cannabis in Michigan, or to those who dispense it.

Criminal Law Consequences. The policy revision might present severe obstacles to the Cannabis industry, which has been steadily growing within the past decade. Up until the policy revision on Tuesday, an increasing number of States resisted Federal policies and prohibitions on cannabis use for any reason, and have passed medical marijuana ordinances, as we have here in Michigan, or they have permitted recreational usage of cannabis, as Colorado and California have done, as examples. Nevertheless, even though the legislation in Michigan allows the use of Medical Marijuana, those individuals who are currently permitted to possess, move and use cannabis lawfully under State law, are specifically breaking federal law, and those individuals could be prosecuted in Federal Court for their narcotics infractions.

Previously, the Obama Administration had presented a policy statement that, in States that had passed marijuana use laws, the Federal Government would disregard, unless they discovered cannabis being sold on school properties or in violation of other public policy regulations. The protocol enabled the expansion of permitted use of marijuana, both medical cannabis and recreational use cannabis, including here in Michigan. Now, there are serious worries that the expansion movement in other States will stop because of a worry that there may be a Federal crackdown on the cannabis industry. Dued to the fact that there are central registries in States that have medical cannabis, and that in States that have approved recreational use, corporate documents denoting businesses that are participated in the cannabis industry, there are, rightfully many people who are scared of arrest and, worst of all, Federal forfeiture of money and their products.

Impact on Michigan. The impact to Michigan, like other States, is not fully ascertainable at this point. The concern circles around the concern of whether the US Attorneys for the Eastern and Western District are interested in reallocating limited resources to try medical cannabis facilities. The U.S. Attorney’s Office has a restricted budget and has to prioritize when and where to invest those resources. Recently, there has been a strong drive to target heroin, fentanyl, and human trafficking, all of which are major concerns, especially in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts propose that it is unlikely that the US Attorney will redirect those resources to begin aggressively prosecuting marijuana related facilities.

Nevertheless, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, implying that the candidate understands that the operation of their facility or use of their license to take part in any way in the cannabis industry, is not allowed by Federal Law and that the United States Government could prosecute such an entity for criminal violations. Before the policy position revision released by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, however, Michigan Medical Marijuana Facilities Licensing Act candidates need to be aware of the policy change, as they have a significant amount of resources at risk in not only acquiring the license, but in handling their business. Even if Medical Marijuana Facilities are operating in total compliance with Michigan Law, the owners, workers and investors could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Several people might rightfully shake their head in confusion at these concerns. One perspective is that, Michigan voters have passed a law okaying the use of cannabis under specific highly regulated circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can not allow the use of Medical Cannabis. The other view is that the Federal Government has said the use of marijuana is unlawful and so, the States shouldn’t have the ability to undermine those laws. Such is the age-old argument over Federalism and States’ Rights. The answer is, the States have their own system of laws that they are authorized to execute, independent and apart from those passed and implemented by the Federal Government. The dualist system of laws is an outgrowth of the 10th Amendment’s provisions, enabling the States to have their own set of laws, an outcome of what is typically called the “States’ Rights” movement. Nevertheless, where Federal Law and State Law are in absolute disagreement, Federal Law may be implemented, even if some States have contrasting laws, because of this dual system. Therefore, anyone applying for a facilities license under the Medical Cannabis Facilities Licensing Act, needs to not only take the waiver seriously, but needs to contact an attorney who can discuss with you the potential criminal liability you may undergo in Federal Court should you establish and run any of the facilities allowed under the MMFLA.