Here is a riddle: “I am legal and unlawful. I am permitted but forbidden. What am I?”

The riddle’s answer — the cannabis industry — underlays a letter that U.S. Representative Barbara Lee fired off Wednesday to Merrick Garland, attorney general of the United States, demanding he fix the contradiction the riddle poses.

That the attorney general is thought to be the one who can best address the problem comes from the unique status of marijuana under the country’s scheme of laws.

Despite that 40 states have ‘legalized’ medical use and 24 ‘legalized’ recreational use, as of Jan 1, 2024, cannabis remained an illegal “Schedule 1” substance under the federal Controlled Substances Act.

According to a Drug Enforcement Administration fact sheet, marijuana’s schedule 1 designation — the same as heroin and cocaine — means it has a “high potential for abuse,” no “currently accepted medical use in treatment,” and “a lack of accepted safety for use under medical supervision.”

Under the U.S. Constitution, federal law is the supreme law of the land and supersedes state law when the two are inconsistent, thus the “legal” use of cannabis in California is a violation of federal law.

That seeming irreconcilable conflict was addressed, if not actually solved, by two famous memos authored by the U.S. Department of Justice in 2013 and 2014.

In the first, James Cole, a deputy attorney general, authored a guidance memo for all U.S. attorneys about what approach federal prosecutors should follow in matters relating to marijuana.

The delicately phrased memo identified a number of areas of federal concern with respect to the drug — distribution to minors, funding of gangs and cartels, and impairment of drivers, among them — and directed federal players to remain focused on those concerns.

As for other matters, Cole noted the federal government has traditionally relied on states and local governments to enforce their own marijuana laws. The memo posits that states that have legalized marijuana use and have implemented “strong and effective” regulatory and enforcement systems, will not be likely to threaten the federal priorities.

The memo concluded that while federal law was not being changed in any way, federal prosecutors should nevertheless focus on things that threatened the federal priorities in states with legal marijuana, not on other matters.

The second memorandumore, this one authored by DOJ Director Monty Wilkinson, followed the basic approach of the Cole memo with respect to tribal lands.

The effect of the Cole and Wilkinson memoranda was that while weed remained illegal on a federal basis, it would be tolerated in states that had legalized medical or recreational use in a fashion that respected the federal priorities.

While far from creating a stable foundation for a burgeoning industry, those frail underpinnings were completely swept away on Jan 4, 2018 when Jefferson Beauregard Sessions, the Alabama Senator who was appointed as U.S. attorney general by then President Donald Trump, issued his own memorandum to the nation’s prosecutors.

Sessions was clear and direct: “previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.” Sessions memo specifically cited the Cole and Wilkinson memoranda.

What was illegal but tolerated before Sessions was now just illegal, but it was a weird kind of illegal because Sessions’ memo did not actually tell prosecutors they should go after marijuana use in states where it was legal.

The end result — and where it stands today — is a large and growing industry resting on a legal foundation that isn’t actually there.

Lee’s letter to Garland begins by expressing her “frustration” that “more than half of Americans living in jurisdictions with legal marijuana markets are left in limbo.”

She calls out the fact that, despite the Biden-Harris stated position against incarcerating anyone for marijuana possession, the DOJ under Garland has not reinstated the Cole and Wilkinson memos.

And while Lee did not ground her letter on the particular vulnerability of California, no state has more to lose should someone declare that the emperor has no clothes.

California: A cannabis epicenter

California is the largest legal market in the United States for cannabis, with $5.14 billion in sales in 2023, according to statistics reported by the California Department of Tax and Fee Administration.

Those sales generated tax revenues of $1.08 billion after extracting excise, cultivation, and sales taxes, two and a half times the governmental take in 2018.

More than 80,000 Californians hold jobs in the cannabis industry.

California has more dispensaries than any other state — a total of 3,659, more than a quarter of all dispensaries nationally.

San Francisco has been at the forefront of the movement to legalize weed in the United States. What began with head shops and a cannabis buyers’ club ultimately led to California becoming the standard bearer in the national legalization effort.

From an economic and cultural perspective, that effort has been extraordinarily successful.

The industry as a whole had $35 billion in sales in 2023 and is projected to double by 2028, according to Flowhub, a cannabis technology company that publishes an annual report on the industry.

Today more than half of Americans have tried marijuana and that almost 80 percent live in a county where there is at least one dispensary.

Flowhub’s 2024 report, citing Gallup, says that seven in ten Americans believe cannabis should be legal, the highest number ever reported and up from 12 percent in 1969.

One revealing statistic is that 21 percent of “Dry January” participants substituted weed for alcohol, according to CivicScience, a polling organization that describes itself as an “opinion analytics platform.”

Going up in smoke?

Though San Francisco has been in the forefront of the cannabis movement, developments locally suggest that all may not be quite as rosy as it might seem.

A recent announcement on the website reports that the annual April 20th gathering at Hippie Hill in Golden Gate Park will not happen in 2024.

The website explains that due “to city wide budget cutbacks, the climate of the cannabis industry & economy, we have been unable to secure enough financial sponsorship to get everything required for a safe, clean, city & state compliant event.”

The explanation poses a riddle that Merrick Garland is unlikely to answer: if the industry is so important to California, why can’t San Francisco muster an official 4/20 celebration?

Joe Dworetzky is a second career journalist. He practiced law in Philadelphia for more than 35 years, representing private and governmental clients in commercial litigation and insolvency proceedings. Joe served as City Solicitor for the City of Philadelphia under Mayor Ed Rendell and from 2009 to 2013 was one of five members of the Philadelphia School Reform Commission with responsibility for managing the city’s 250 public schools. He moved to San Francisco in 2011 and began writing fiction and pursuing a lifelong interest in editorial cartooning. Joe earned a Master’s in Journalism from Stanford University in 2020. He covers Legal Affairs and writes long form Investigative stories. His occasional cartooning can be seen in Bay Area Sketchbook. Joe encourages readers to email him story ideas and leads at [email protected].