Sen. Mike Lee (R-Utah) asked about the separation of powers and how that could impact marijuana laws during at the confirmation hearing, Jan. 10, for attorney general nominee Jeff Sessions. (Reuters)

In November 2012, people in Colorado and Washington voted to legalize marijuana for recreational use in their states. Nine months later, as the states worked out their local legal regimes, then-Attorney General Eric H. Holder Jr. issued a directive to law enforcement, urging them to let the states’ experiments proceed. By the end of 2016, a batch of new states had legalized marijuana, and Holder himself was advocating for marijuana to be “rescheduled” — meaning that penalties should be lowered for sale and possession across the country.

There might be no easier position for Sen. Jeff Sessions (R-Ala.) to reverse if, as expected, he is confirmed as attorney general. But in Tuesday’s 10-hour grilling, Sessions received two questions about marijuana, on in the form of a loping and friendly inquiry about federalism from Sen. Mike Lee (R-Utah).

“For the first time in a very long time, you have seen some attention paid to federalism, but in the limited area associated with marijuana,” Lee said. “In other words, there are federal laws prohibiting the use of marijuana, the sale of marijuana, the production of marijuana that apply regardless of whether a state has independently criminalized that drug, as every state until recently had. Then you had some states coming along and decriminalizing it, sometimes in the medical context, other times in a broader context. The response by the Department of Justice during the Obama administration has been interesting and it’s been different than it has in other areas. They have been slow to recognize, for instance, federalism elsewhere. They chose to recognize it here. My question to you is, did the way they respond to that federalism concern run afoul of separation of powers?”

Sessions asked Lee to clarify. “Are you talking about separation of powers within the federal government, the three branches of federal government?” he asked. “And how does that implicate the marijuana laws?”

“Yes,” Lee said. “Are there separation of powers concerns arising out of the Department of Justice’s current approach to state marijuana laws?”

Lee had not asked directly whether Sessions would reverse what the Obama administration did. Instead, he framed the question as one of whether the Sessions DOJ would obey the law and defer to Congress. That approach, followed literally, would put Sessions on the opposite side of the Obama administration and Democrats on a host of issues — from the status of immigrants living in the United States to voting rights.

In his answer, Sessions suggested that Congress, unlikely to move on marijuana policy, would set the standard.

“I think one obvious concern is that the United States Congress has made the possession of marijuana in every state, and distribution of it, an illegal act,” he said. “So, if you need — if that’s something that’s not desired any longer, Congress should pass a law to change the rule. It’s not so much the attorney general’s job to decide what laws to enforce. We should do our job and enforce laws effectively as we’re able.”

The other marijuana question came from Sen. Patrick Leahy (D-Vt.), who asked how Sessions squared state’s rights with marijuana policy.

“I believe your own state of Alabama permits the use of a derivative of marijuana known as CBD oil, legal in Alabama, illegal under federal law,” said Leahy. “If you are confirmed as the nation’s chief law enforcement official, and you know that we have very, very limited federal resources — in fact, we spend about a third of our budget now just to keep the prisons open because of mandatory minimums and whatnot — would you use our federal resources to investigate and prosecute sick people who are using marijuana in accordance with their state laws, even though it might violate federal law?”

“I won’t commit to never enforcing federal law,” said Sessions. “But, absolutely, it’s a problem of resources for the federal government. The Department of Justice under Lynch and Holder set forth some policies that they thought were appropriate to define what cases should be prosecuted in states that have legalized at least in some fashion some parts of marijuana.”

Do you agree with those guidelines?” asked Leahy.

“I think some of them are truly valuable in evaluating cases,” said Sessions. But, fundamentally, the criticism I think that was legitimate is that they may not have been followed. Using good judgment about how to handle these cases will be a responsibility of mine. I know it won’t be an easy decision, but I will try to do my duty in a fair and just way.”

“The only reason I mention it,” said Leahy, “[is that] you have some very strong views. You even mandated the death penalty for anyone convicted of a second drug trafficking offense, including marijuana, even though mandatory death penalties are, of course, unconstitutional.

“Well, I’m not sure under what circumstances I said that,” said Sessions. “But I don’t think that sounds like something I would normally say. I will be glad to look at it.”

It was a mixed series of answers, some of it encouraging to defenders of the current policy, some not. In an interview Monday, Sen. Rand Paul (R-Ky.), who supports allowing states to experiment with legalization without federal meddling, said that he had tried to communicate to Sessions that defending states’ rights would allow legalization to continue.

“Many conservatives believe in leaving states to themselves for the most part,” Paul said. “Decisions like legalizing marijuana should be left up to states. I’ve had that discussion with Sessions. I can’t characterize what he said, but I hope he won’t interfere with legalization. He needs to answer that himself.”

Don Murphy, a legislative strategist at the Marijuana Policy Project, said that the Sessions answers were expected.

“What was most telling may be that not only did Sessions not use his opening statement to mention the conflict between state and federal law regarding marijuana but that no member of either party thought it was worthy of a first round question,” he said. “They all know marijuana policy reform is popular with voters across the political spectrum and a line not to be crossed. I’m sure Trump knows it too.”