By: Trevor Wong
In 1996, Californians passed Prop 215 allowing qualified medical patients the right to cultivate and possess marijuana. In 2016, Californians passed Prop 64 allowing adults over the age of 21 to use marijuana recreationally. In the twenty intervening years, the Obama Administration gave California and other states assurances that if they developed a robust regulatory and enforcement system for medical or recreational adult use of marijuana, residents who complied with state laws and regulations would have a reasonable expectation that they would not be subject to harassment, arrest or incarceration by the federal government. Under those assurances, California’s marijuana industry flourished, growing into a multibillion-dollar industry. Security and continued growth, however, depends on whether the Trump Administration continues Obama era policies.
While campaigning, President Trump never made his stance on marijuana clear. At times, he said that marijuana legalization should be left to the states, while at other times, he claimed that Colorado’s legal marijuana industry was a “real problem.” When Trump appointed Jeff Sessions (a staunch anti-drug crusader) as Attorney General many saw it as a signal that the administration might eventually reverse the Obama-era policies and begin greater enforcement of federal marijuana laws in California and nationwide.
To mitigate the risk of such a policy reversal, Assembly Member Jones-Sawyer (D-Los Angeles) proposed AB 1578. The bill would have prohibited state and local law enforcement agencies from taking certain actions unless federal authorities first obtained a court order. Some of the actions prohibited without a court order include: using agency money, facilities, property, equipment, or personnel to assist a federal agency to investigate, detain, detect, report, obtain information, or arrest a person for cannabis activity that is authorized or allowed under California law.
The bill drew opposition from law enforcement organizations and a major local government group. Both were concerned that the bill, by needlessly preventing cooperation between federal and state officials, would place California in violation of federal law and would lead to inefficiencies not present under the current law. But those concerns may be overstated because AB 1578 would not have prevented all cooperation. On the contrary, cooperation would still be lawful whenever federal authorities obtained a court order. Moreover, under AB 1578, federal authorities would still be able to enforce federal drug laws related to marijuana in California themselves. They simply would not be able to use California resources to enforce those laws.
Another major concern was that federal law would preempt AB 1578. But because the federal government cannot force state and local law enforcement agencies to enforce federal law in the first place, it is likely that AB 1578 would have withstood a preemption challenge because it would merely have codified the already-existing right of state and local law enforcement agencies to not affirmatively assist the federal government in enforcing federal law.
Ultimately, AB 1578 did not pass. But that does not necessarily spell disaster for California’s marijuana economy. Because the federal government cannot force state and local law enforcement authorities to enforce federal law, even without this bill, local law enforcement is not obligated to assist federal authorities in enforcing federal marijuana law. So to the extent state and local law enforcement simply refuse to help federal authorities, the goal of this bill can be achieved, despite the fact the legislature did not pass the bill. In addition, although the Trump administration’s position on the issue is still unclear, for the time being, marijuana users in California do not have to worry about federal prosecution because the Obama-era policies are still in effect. Nonetheless, the risk that the Trump administration will reverse Obama-era policies remains, and California residents will remain in limbo until the Trump administration makes its intentions clear one way or the other.
To learn more about AB 1528, check out my interview on “In Session,” a podcast from the University of the Pacific Law Review.
Trevor Wong is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.