As states and cities move to liberalize marijuana laws, the administration looks at changes to federal policy and the No. 2 House Democrat reverses course on decriminalization, Attorney General Eric H. Holder Jr. found himself in a charged congressional hearing on Tuesday.
Pressed by members from both sides of the aisle to defend Justice Department practices in states that have legalized marijuana for recreational purposes, Holder insisted the Obama administration has not "retreated."
Holder also said the DOJ won't scale back marijuana punishments by rescheduling the drug, as House Democrats have been pushing President Barack Obama to do, saying he was "satisfied" with what the department is doing.
“The notion that somehow we have retreated from our enforcement of the Controlled Substances Act with regard to marijuana is not accurate," Holder told the House Judiciary Committee. He reiterated a DOJ memo laying out eight areas of priority for pot prosecutions, including marketing to minors, driving under the influence and criminal cartels.
"That's not inconsistent with, I think, the way in which the Justice Department was acting before," Holder continued in response to a question from Rep. Howard Coble, R-N.C. “We remain committed to enforcement of marijuana laws that would involve those eight factors,” he added.
His comments suggest that the D.C. Council's bill to decriminalize the drug , recently signed by Mayor Vincent Gray, and potential actions to legalize marijuana in the District would be allowed to stand if such legislation survives congressional review.
Legalization proponents, including Rep. Earl Blumenauer, D-Ore., predict the 60-day review period for the bill will be a fascinating test for Capitol Hill's attitude on marijuana. In an interview with CQ Roll Call on Tuesday, Blumenauer noted that recent polls show that even people who are unsure or opposed to changing pot policies don't think the federal government should interfere.
"This could be, if not a turning point, a very important inflection point to force people to come to terms with what's happening out there — what a majority of Americans want, and a strong sense of whether or not they really believe in states' rights or they're going to treat the District of Columbia like a colony," he said.
The GOP majority in the House has shown it is willing to push back on decriminalization efforts. Last month, the House passed a bill tweaking the president on drug policy, which cleared the chamber 233-181. The legislation, sponsored by Rep. Trey Gowdy, R-S.C., and backed by House Judiciary Chairman Robert W. Goodlatte, R-Va., would make the president enforce federal laws as they are written, including those outlawing marijuana. Specifically, it would authorize the House or the Senate to bring a civil lawsuit against the White House for executive overreach.
“It’s on my radar,” Gowdy said last week when asked about D.C.’s decriminalization bill.
On the other hand, House Democratic leaders have shown support for other decriminalization efforts. House Minority Whip Steny H. Hoyer and Budget Committee ranking member Chris Van Hollen said Tuesday they support Maryland Gov. Martin O’Malley’s decision to sign a bill decriminalizing recreational marijuana in their home state.
O’Malley said Monday that he will sign the bill, which imposes civil fines, as opposed to criminal penalties, for possession of less than 10 grams of the drug. Previously, Hoyer objected to such efforts, saying experts prevailed on him that pot was a gateway drug. But Hoyer said there were too many people with criminal records or in prison for marijuana use, a point echoed by Van Hollen and civil rights advocates on a national level.
However, in an illustration of how sticky the issue can be, Hoyer found himself clarifying remarks he made Tuesday morning, in which he suggested he had experimented with marijuana, only to have his staff go into overdrive to wave the smoke away.
"To be clear, I have not used marijuana. The point I tried to make was that I wasn’t going to ask for a show of hands of people who haven’t tried marijuana — because if I did, I would probably be one of very few who could raise my hand,” Hoyer said in a statement emailed to CQ Roll Call. Regardless, the Judiciary hearing revealed deep fissures that cut across party lines. While Republicans, including Iowa's Steve King and Missouri's Jason Smith, criticized the Justice Department's approach to enforcement during the contentious hearing, one Democrat ripped Holder for not using his power to move pot out of the federal drug category known as Schedule I, as Obama has indicated he wants to do.
"There's no way that marijuana should be Schedule I, because it's not the same class as heroin and LSD as it is in the code. ... I predict Congress will not act in this area," Rep. Steve Cohen, D-Tenn., said, comparing his colleagues to "tortoises."
Under that classification, shared with narcotics, marijuana has no legitimate use whatsoever, even for medical research or patient treatment. Lower schedule status, such as II or III, would give the drug limited medical legitimacy.
"Why will you not act on the president's suggestion?" Cohen pressed.
Holder said he thinks DOJ has "acted in a responsive way" in determining how to use its limited resources and recognizing the division between federal and local law enforcement, but rejected the suggestion that he should ask the administration to initiate the process of rescheduling the drug. The Drug Enforcement Administration and the Food and Drug Administration determine which substances are added to or removed from the various schedules.
"What's obvious to one ... might not be obvious to another," Holder said in response to Cohen declaring the Schedule I status "absurd."
The tense atmosphere in the Judiciary Committee hearing was all the more remarkable because of Holder's own recent statements.
During a visit to Capitol Hill to testify to House appropriators last week, Holder said he would be happy to work with Congress to re-examine how the drug is scheduled. Holder said there was a great degree of expertise in Congress, and lawmakers would ultimately have to make the change.
Blumenauer also hoped Holder would change his tune on rescheduling the drug.
"This is something the administration could do on its own," he said. "The evidence strongly suggests that it is misclassified. I'd like to see them take the initiative."
Daniel Newhauser contributed to this report.