While the Cole and Ogden Memos were rescinded by Attorney General Jeff Sessions in January 2018, during the first Trump Administration, the Federal Government and, specifically, the Justice Department has continued to adhere to their precepts by taking a hands off policy with regard to the enforcement of federal marijuana prohibition in states that have "enacted laws legalizing marijuana in some form and ... implemented strong and effective regulatory and enforcement systems ...".
But the question is whether that will change during Trump's second term.
Federal agencies tasked with border security are contesting a lawsuit from New Mexico marijuana businesses that have had their state-legal products and other assets seized—arguing that, because cannabis is a Schedule I drug under federal law, it can be “summarily” taken.
While the U.S. Department of Homeland Security (DHS) and Customs and Border Protection (CBP) suggested might not be the case if marijuana is moved to Schedule III, they argued that at present marijuana remains a Schedule I drug under the Controlled Substances Act (CSA) and so seizing the property at border checkpoints within New Mexico is consistent with federal law, regardless of the state’s decision to legalize cannabis.
Notably, the memorandum suggested that the forfeiture process would be different if cannabis was classified as a Schedule III drug or lower, since unlike Schedule I and Schedule II, forfeiting most types of seized property requires compliance with additional procedures to ensure that property owners are afforded due process”, namely the Civil Asset Forfeiture Reform Act, or CAFRA.
In other words, the filing seems to acknowledge that if marijuana wasn’t a Schedule I or Schedule II drug, they would otherwise be entitled to certain avenues for notice, appeal and relief.
While the Plaintiffs here have focused on allegations that New Mexico state-legal marijuana businesses are being treated differently than “similarly situated” businesses in Arizona and California, what I found most interesting was that by the agencies’ admission, the statistics about cannabis seizures in other legal states “do not distinguish between ‘state-legal’ and ‘illegal’ marijuana."
“CBP does not make such a distinction because all marijuana is illegal under federal law,” they said. “For those reasons, Plaintiffs have failed to plausibly allege that they were treated differently from other similarly situated entities.”
The government has also contested plaintiffs’ argument that the federal government’s “hands-off” approach to state-level marijuana reform was relevant to the case at hand. The agencies simply said that, regardless of past DOJ and Treasury Department guidance or informal policy precedent, there’s nothing currently codified in law that bars DHS and CBP from continuing to enforce federal prohibition.
That's concerning and leaves me asking whether adherence to the Cole and Ogden Memos is going the way of the dodo bird?