By James Higdon
On Election Day, eight states voted to legalize recreational or medical marijuana, bringing the nationwide total of medical states to 29. In Florida, medical marijuana won nearly 2 million more votes than Donald Trump. Added up, 65 million people now live in states that authorize adult recreational use; more than half of all Americans have access to medical marijuana; and almost everyone else lives in a state that permits CBD, a non-psychoactive component of cannabis that helps treatment of juvenile epilepsy. It’s easier now to identify the six states that have done nothing to end the prohibition on marijuana than the ones that are breaking away from the federal law that treats marijuana the same as heroin.
There was another winner on November 8, however, and he has thrown up a serious challenge to the seemingly inexorable march of legal marijuana. By nominating Senator Jefferson Beauregard Sessions III for attorney general, President-elect Donald J. Trump is about to put into the nation’s top law enforcement job a man with a long and antagonistic attitude toward marijuana. As a U.S. Attorney in Alabama in the 1980s, Sessions said he thought the KKK "were OK until I found out they smoked pot.” In April, he said, “Good people don't smoke marijuana,” and that it was a "very real danger" that is “not the kind of thing that ought to be legalized.” Sessions, who turns 70 on Christmas Eve, has called marijuana reform a "tragic mistake" and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing a the federal prohibition that President Obama has called “untenable over the long term.” In a floor speech earlier this year, Senator Sessions said: "You can’t have the President of the United States of America talking about marijuana like it is no different than taking a drink… It is different….It is already causing a disturbance in the states that have made it legal.”
Sessions has not shared his plans on marijuana enforcement, but if he chooses, he will be able to act decisively and quickly—more so perhaps than with any other of his top agenda items such as re-doubling efforts to combat illegal immigration and relaxing oversight of local police forces and federal civil rights laws. With little more than the stroke of his own pen, the new attorney general will be able to arrest growers, retailers and users, defying the will of more than half the nation’s voters, including those in his own state where legislators approved the use of CBD. Aggressive enforcement could cause chaos in a $6.7 billion industry that is already attracting major investment from Wall Street hedge funds and expected to hit $21.8 billion by 2020.
And so far, Congress has shown no interest in trying to stop the Sessions nomination, at least on this issue. Even members who are in favor of protecting states from federal interference on the marijuana issue have said they support Sessions’ confirmation as attorney general: “I strongly support Jeff Sessions as Attorney General,” said Representative Tom McClintock, Republican from California. “He is a strict constitutionalist who believes in the rule of law. I would expect that he will respect the prerogative of individual states to determine their own laws involving strictly intra-state commerce.”
Meanwhile, proponents of legalization across the country are panicking as they reckon with how quickly a Reagan-era throwback in the attorney general’s office will be able to dismantle more than a decade of progress.
“If we don't take action and hold President-elect Trump accountable,” said Representative Jared Polis, Democrat from Colorado, “in one fell swoop, the federal government could damage state economies, and discourage entrepreneurship—placing some of our innovators behind bars, all while eroding states' rights.”
California was the first state to legalize medical marijuana in 1996, largely in response to the AIDS crisis. Over the next decade, other western states followed suit. Then during the Obama administration, medical marijuana spread to every corner and every region of the country, including Washington, D.C., Guam and Puerto Rico. Like other culture war issues such as gay marriage, marijuana found favor with the general population, seemingly overnight after decades of work.
In 2012, Colorado citizens voted to become the first state to legalize weed for purely recreational purposes, leaving the federal government in a bit of a pickle. Marijuana was still considered by the feds to be more dangerous than cocaine, so what was it going to do about the eruption of grow operations? One solution would have been to reclassify marijuana out of Schedule I—the list of drugs like heroin considered the most dangerous and addictive and which are deemed to lack any medicinal value—but that didn't happen because of entrenched opposition from the Drug Enforcement Administration and an apparent lack of will at the White House to go to war with its own DEA. Instead, the DOJ wrote a memo as a short-term work-around, drafted by a deputy attorney general named James Cole.
Published in August 2013, the four-page Cole Memo was addressed to all U.S. attorneys and said, “In jurisdictions that have enacted laws legalizing marijuana in some form... conduct in compliance with those laws and regulations is less likely to threaten the federal priorities…” Translation: Don’t go out of your way to prosecute marijuana cases. It was a half-hearted solution that had the effect of giving states some breathing room, but marijuana activists knew that it was just a memo, lacking the force of law.
Some lawmakers attempted to give states greater protection, but to little avail. In 2007, Representative Dana Rohrabacher, a Republican from California, offered an amendment to the appropriations bill that funds the Justice Department to restrict federal funds that might be used to go after state-legal medical marijuana programs. His original cosponsor was Maurice Hinchey, a New York Democrat. The measure failed in 2007, and six more times. Upon Hinchey's retirement, Sam Farr, Democrat from California, signed on as the cosponsor. In 2014, Rohrabacher-Farr finally passed. In 2015, McClintock and Polis tried to go further by proposing a similar measure that would protect state-legal recreational marijuana programs, but it failed narrowly.
When asked by POLITICO about his concerns for the future of marijuana policy reform, Rohrabacher focused on his past successes rather than the possibility that the reform that bear his name might not survive: “The Rohrabacher-Farr amendment has twice passed the House, most recently with a vote in 2015 of 242-186, and has twice been included in an omnibus spending package and signed into law, as well as being extended in a number of continuing resolutions,” he said. Sam Farr declined to comment.
But this strategy to limit the executive branch by using Congress' power of the purse has one significant downside: Those amendments must be renewed with each budget or they’ll expire. Like the Cole Memo, the Rohrabacher-Farr amendment is not yet the law of the land, and because of new rules implemented by Speaker of the House Paul Ryan, amendments related to guns, abortion, LGBT issues and marijuana will no longer be permitted—a change that Kentucky Representative Thomas Massie, sponsor of a bill to protect industrial hemp programs, considers “an affront to regular order” and “a travesty to our democracy.”
So, with the amendment process shut down in the House, advocates will have to rely on their allies in the Senate to stop the incoming attorney general or take matters into their own hands with a stand-alone bill, even though the chances of such a marijuana bill passing through committee has always been zero. However, Massie has hopes that his stand-alone hemp bill will get a hearing in the House Judiciary Committee, whose chairman, Bob Goodlatte, represents Virginia, which legalized industrial hemp in January 2016. Likewise, Polis plans to re-introduce his “Regulate Marijuana like Alcohol Act,” in the next Congress. “I urge my colleagues in Congress to immediately pass it,” Polis said.
It’s unlikely. His bill has failed twice before.
Without any protection from Congress, every marijuana grower and dispensary owner who came out of the shadows to become a taxpaying member of the legal recreational cannabis industry in Colorado, Oregon, Washington state and Alaska has exposed himself to potential criminal prosecution by a DOJ run by Sessions. A list of potential defendants would number in the hundreds (The National Cannabis Industry Association, a trade group, boasts more than 1,000 dues-paying members). The higher the profile of these cannabis businesspeople, the more at risk to federal prosecution—like when the Justice Department under George W. Bush went after Tommy Chong of "Cheech & Chong" fame for selling glass pipes across state lines. But beyond going after those engaged in legal recreational weed, what could Attorney General Sessions actually do to reverse the progress of legalizing marijuana?
Sessions won’t say, but Smart Approaches to Marijuana, an anti-marijuana group that spent about $2 million last year fighting legalization, has a wish list.
“At the very least, the incoming Attorney General should enforce the terms of the DOJ’s own memoranda,” said Jeffrey Zinsmeister, executive vice-president and director of government relations for SAM, referring to the Cole Memo and citing a GAO report that claimed “the DOJ was not even collecting the information necessary to follow-up on its own marijuana enforcement priorities, much less enforce federal law on marijuana. ”
His group, said Kevin Sabet, SAM's founder and president, "looks at marijuana use as a public health issue, not a moral issue. We don't think people should be in prison for using marijuana, and we don't want to see arrest records for young people caught smoking marijuana." But there are more aggressive steps the new attorney general could take, according to SAM officials, to crack down on purveyors of marijuana.
“The DOJ could write a letter to governors in legalized states stating that any state issued licenses regulating marijuana sales is a violation of the Controlled Substances Act, and say they have 90 days to revoke licenses. It could issue a new memo to the states that have not implemented marijuana sales yet and say that they advise those states not to allow them. DOJ could also say that in the next six months they will enforce the 2013 Cole Memo and determine if states have violated its terms. It would be hard to argue that they haven’t,” Zinsmeister said.
Without any restraint from Congress and being egged on by the likes of Project SAM, the only thing that could stand in Attorney General Sessions's way of launching a new front in the marijuana wars is the president-elect.
But Trump's exact views on the issue remain elusive and mixed at best. At the annual conservative CPAC gathering in February 2015, then-candidate Trump expressed support for medical marijuana, but drew the line at recreational adult use: “I say it's bad," he said, in answering a question about Colorado’s recreational marijuana law. "Medical marijuana is another thing, but I think [recreational marijuana is] bad. And I feel strongly about that." When the moderator, FOX News’s Sean Hannity, pressed Trump on the states’ rights aspect, Trump replied, "If they vote for it, they vote for it. But they've got a lot of problems going on right now in Colorado. Some big problems. But I think medical marijuana, 100 percent.”
It’s not clear what problems Trump is referring to in Colorado, though it could be the slight uptick in marijuana-related traffic fatalities and teen usage. But that lack of clarity could in itself be a green light for an attorney general predisposed to act aggressively. Trump also applauded the brutal anti-drug campaign conducted by Philippines president Rodrigo Duterte. Since June, police in the Philippines have killed more than 2,000 people in drug raids, which Trump applauded as doing things "the right way," according to Duterte.
“Part of the challenge here is that the wild card is the president,” Rep. Earl Blumenauer told POLITICO, referring to the president-elect. Blumenauer has been an advocate for marijuana policy reform since 1973 and represents Portland, Oregon, which has legalized medical and recreational marijuana. “I think it’s unlikely that a President Trump takes a stand and reverses this trend that would put him out of step with his constituents. He’s not likely to do anything to alienate himself with millions of his supporters.”
Then again, it might not be up to him.