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Last week, from the floor of the United States Senate, Senator Cory Gardner (R-CO) had harsh words for both United States Attorney General Jeff Sessions and President Trump for reversing the policy on legal marijuana enforcement, despite both men having given earlier repeated assurances that the issue was not going to be addressed.

Red-faced with anger and in a tone rarely heard from the senator whose Republican colleagues once nicknamed “Mr. Sunshine”, Gardner did not mince his words. “Up until 8:58 this morning, we believed in Colorado that states’ rights were protected,” he began. “Up until 8:58, until a [Twitter] told us otherwise, we believed that the will of Colorado voters would be respected.”

Gardner stated that, prior to his confirmation, then Senator Jeff Sessions had personally assured him and other members of Congress that “there were no plans for the Department of Justice to reverse the Cole memorandum on legalized marijuana”; “marijuana was simply not going to be on Trump’s agenda”, and it was not an issue the administration planned to “deal with” or “focus on”.

“That was back in spring of 2016, and, up until 8:58 this morning, that was the policy,” Gardner said, raising his voice and tapping the podium for emphasis. “One tweet, one policy change later, there was a complete reversal of what we had been told before confirmation, what we had believed for the last year. Without any notification, conversation or dialogue with Congress, it was completely reversed.”

Gardner was referring to a January 4 announcement by Sessions that the Department of Justice was going to rescind the Cole Memorandum. Named for its author, U.S. Deputy Attorney General James Cole, the 2013 memorandum gave guidance to those federal prosecutors in states where marijuana had been legalized. Basically, it described a shift in priorities from strict federal enforcement of the prohibition of marijuana to a more “hands-off” approach where only those activities considered dangerous at a federal level would be prosecuted, such as using revenue from sales to fund other criminal behavior, distributing marijuana across state lines or using firearms and other weapons in its production, processing and sale. Otherwise, federal prosecutors were to defer to the states to develop their own systems of monitoring and regulation of marijuana cultivation, distribution and sale.

Gardner admitted to understanding Sessions’ opposition to legalizing marijuana, adding that he opposed its legalization, as well. “But this is about a decision by the state of Colorado, and we were told states’ rights would be respected,” he said. Gardner went on to say that assurances also came from (then candidate) Donald Trump.

“In fact,” he said, “in Colorado, in July of 2016, when candidate Trump was asked if federal authority would be used to shut down sales of recreational marijuana, he said—and I quote—‘I wouldn’t do that.’ When asked if Colorado should be allowed to do what it’s doing, candidate Trump said, ‘It’s up to the states, absolutely.’ I would like to know from the Attorney General,” Gardner continued, “what has changed in President Trump’s mind that the Cole Memorandum would be reversed and rescinded? Why is President Trump thinking differently today from what he promised the people of Colorado in July of 2016?”

Colorado is one of 29 states with legalized medical marijuana and was the first of eight states to legalize its recreational use with retail sales beginning in January of 2014. According to a study conducted by VS Research and reported on in July of 2017, Colorado has received a total of $506 million in revenue thus far. That figure reflects both medical and recreational—called “adult use”—marijuana sales. Total revenue has grown each year with sales increasing from $75 million in 2014 to $200 million in 2016. Although totals have not been tallied for 2017, it’s anticipated that the amount will exceed 2016 figures.

The bulk of revenue has been spent on schools throughout the state with a smaller, but significant, amount devoted to drug prevention and treatment programs as well as programs regulating and monitoring the industry, itself.

The largest percentage of tax revenue comes from the sale of recreational marijuana. Medical marijuana carries a sales tax of 2.9% in addition to fees related to license and application fees. In contrast, recreational marijuana is taxed more aggressively with a 2.9% sales tax, an excise tax of 15% and a special sales tax of 10% as well as license and application fees.

Rescinding the Cole Memorandum, which caught lawmakers on both sides of the aisle completely by surprise, puts the future of the industry in doubt. However, not only is the rescinding of current policy completely devastating in and of itself, the complete lack of clarity provided by the January 4 announcement further complicates the situation as it seems federal prosecutors are allowed, at their discretion, to either prosecute or not. That leaves those legal businesses operating in accordance with the state’s law in a “cloud of uncertainty”, as Gardner described it. “Thousands of jobs are at risk,” he said. “Millions of dollars of revenue. And the constitutionality of states’ rights is very much at the core of this discussion.”

Gardner called on Sessions and Trump to “reverse their decision to rescind the Cole memorandum and re-implement and reinstate the memorandum.”

He then went on to issue an ultimatum, of sorts, stating that, until Sessions and Trump reverse the decision, he will put a hold on all nominations by the Department of Justice. That action, called a “senatorial hold”, affords each senator the right to keep a nomination from going to a vote until such time as he or she removes the hold.

With that ultimatum issued, Gardner closed by saying, “The people of Colorado deserve answers. The people of Colorado deserve their will to be respected.”


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