Supporters of liberalizing marijuana laws worry their relationship with the federal government is about to get a lot more contentious as members of the incoming Donald Trump administration signal they will take a harder line on drug policy.
During the Obama administration, Attorneys General Eric Holder and Loretta Lynch agreed not to enforce some drug laws in states where marijuana is legal. That is likely to change under Sen. Jeff Sessions (R-Ala.), President-elect Trump’s nominee to become attorney general.
Sessions is considered one of the staunchest pot opponents in the Senate, a hard-line conservative who once remarked that he thought the Ku Klux Klan was “OK” until he learned members smoked marijuana. At a Senate Judiciary Committee hearing earlier this year, Sessions said he wanted to send a message that “good people don’t smoke marijuana.”
“Sessions doesn’t appear to have a very enlightened view about the war on drugs, so that’s somewhat discouraging,” said Pete Holmes, Seattle’s city attorney and one of the driving forces behind Washington’s decision to legalize marijuana for recreational use.
“When you hear the kind of knee-jerk biases expressed by a guy who will be the nation’s top law enforcement official, it’s scary.”
Supporters of liberalizing marijuana laws have scored big wins in recent years, as voters in both red and blue states have loosened marijuana laws. After November’s elections, more than half of states will allow the use of marijuana for medical purposes, and eight states will allow marijuana for recreational purposes.
The legal marijuana industry is becoming a billion-dollar boon for businesses and investors and a reliable new source of revenue for cash-poor cities and states. Earlier this month, voters in Massachusetts, Maine, California and Nevada joined Washington, Colorado, Alaska, Oregon and the District of Columbia in legalizing marijuana for recreational use.
But marijuana remains illegal at the federal level, and pro-pot advocates have maintained an uneasy truce with the Justice Department under President Obama.
As attorney general, Sessions has a host of options for changing the federal government’s posture toward marijuana.
He could follow precedent set by Holder and Lynch and let states chart their own path, or, on the other extreme, he could tell governors that any state that issues a license to permit marijuana sales would stand in violation of the Controlled Substances Act.
Sessions could revisit the Cole memo, the August 2013 memorandum written to federal prosecutors by then-deputy Attorney General James Cole that lays out the Justice Department’s priorities in prosecuting drug cases. The Cole memo allowed prosecutors to skip cases in states that institute regulatory and enforcement systems to oversee marijuana sales.
To legal pot opponents, the Cole memo — and other steps the Obama Justice Department has taken — is an abdication of responsibility to implement federal law.
“We want to see federal law enforced. I think a clear letter asking states to stand down until Congress changes the law makes the most sense, and I think governors in these states would gladly oblige,” said Kevin Sabet, who heads Smart Approaches to Marijuana, a group that opposes legalization.
The debate over marijuana legalization is a proxy, however imperfect, for the larger question of states’ rights.
Legal marijuana backers say they hope Sessions and Trump let the states experiment as the founders intended.
Sessions co-sponsored a bill introduced by Sen. Roger Wicker (R-Miss.) last year that would have allowed states to challenge proposed federal rules under the 10th Amendment to the Constitution, which reserves rights for the states. That gives some legal marijuana backers at least a glimmer of hope that the incoming administration won’t crack the whip.
“Voters in 28 states have chosen programs that shift cannabis from the criminal market to highly regulated, tax-paying businesses. Sen. Sessions has long advocated for state sovereignty, and we look forward to working with him to ensure that states’ rights and voter choices on cannabis are respected,” said Aaron Smith, who heads the National Cannabis Industry Association in Denver.
But opponents of marijuana liberalization say they see their own encouraging signs that the tide toward legalization may be turning.
“We’ve all wondered whether the Trump presidency would be ‘states rights’ or ‘law and order’ when it comes to drugs,” Sabet wrote in an email. “The Sessions pick makes many of us think it may be the latter.”
Even with Sessions overseeing the Justice Department, legal marijuana proponents are likely to continue pursuing liberalization through ballot measures and state legislatures.
Marijuana legalization measures are already circulating in Ohio, Texas, Mississippi and Missouri. Legislatures in states like New Jersey, Vermont, Delaware and Rhode Island are likely to take up marijuana legalization bills in upcoming legislative sessions.