President-elect Trump has nominated Senator Jeff Sessions to the post of Attorney General for his incoming administration. The decision has many in the legal yet still state-by-state level marijuana industry across the United States right now.
While Trump is expected to support medical expansion, it is still unclear what impact the Alabama Republican nominee for attorney general will have on either state or federal policies regarding the industry.
From his statements so far to date, legalization advocates are worried. “Marijuana is not the kind of thing that ought to be legalized” he has said, claiming the industry “in fact a very real danger.” Not to mention of course that “good people don’t smoke marijuana.”
Liberals, including editorial writers at The New York Times, have said that his nomination overall is “an insult to justice.” This is not just due to his marijuana stance, but also to his views on a wide range of issues ranging from immigrants to the LGBTQ community and Muslim Americans.
That said, it is unclear at this juncture what Sessions’ first focus or even broader policies will be once in office. It could be that the already profitable and expanding industry will be the subject of political broadsides against it but little else. Further, to attack the state-based industry at this point, would mean a broad-based defiance of state law – in multiple states – starting with California.
What the Future Holds
That said, the federal government has done that before in this vertical – namely starting in 1996 to target California specifically on legal crackdowns on what was as of this point, a legal state industry. There is nothing at this point stopping Sessions from reinstituting a new and more draconian policy than the current “Coles Memo” which essentially discourages federal investigations and prosecutions of state-legal marijuana industries.
Because Sessions has not shared his plans on enforcement of the industry, these questions are not only understandable, but worrying many who already rely on the vertical for their bread and butter. That said, if he chooses to do so, he will be able, once nominated, to act decisively and quickly to change federal policy on this front. With little more than a stroke of a pen, he will be able to arrest growers, retailers and users – defying the will of more than half the nation’s voters.
So far, at least, Congress has shown little to no interest in interfering with the Sessions nomination – even more so on this issue. Even members who are in favour of allowing states to be protected from federal marijuana prosecutions have said they would support his nomination.
It is also highly unlikely that the new Congress will pass federal legislation to either re-or de-schedule the drug. Given this, the Justice Department has broad latitude to decide its new drug policy – particularly in states where recreational use is now legal.
While Trump has gone on record supporting medical use, he has also opposed recreational expansion. Could this mean, in some respect, that medical only states might be safe from Sessions, but the recreational industry – including its biggest new market California – expect a whole new round of raids focused on one sector of the business?
Looking at the Bright Side
That said, the bright side, if one is to be found, is that Sessions is also a strong states’ rights advocate. This means that while he might not challenge states’ rights to create such an opportunity, other issues related to the drug war – including arrests for possession along racially tinged lines might actually increase, particularly in an environment where immunity from federal prosecution is still not reality even in states where the drug is legal.
The other issue that has the business industry worried is that Sessions might target certain kinds of businesses – and prosecute a couple of high level cases. This is likely to have a chilling effect on an industry overall that is setting its sights on growth after last November’s elections.
The Fight Goes On
That said, despite the jitters, there is one reality that Sessions will not be able to change – and that is the high support for legalization of marijuana across the country. If he decides to embark on an anti-pot crusade, no matter the issue, it is likely to inflame passions if not more in a still highly divided country. As a result, Sessions will have to pick any potential pot challenges in a way that does not create active and loud response – not only from individuals and activists this time, but fully fledged, operational and tax-paying state legal industry.
The reality is that Sessions, like most of the rest of the Trump cabinet, if not the Trump Administration itself, has laid out a broad and active agenda but it is still unclear how much they will actually pursue.
Busting pot businesses takes money – which technically at this point, the Justice Department does not have thanks to the defunding of the DEA raids of the same.
As a result, Sessions may be doing a lot of anti-pot sabre rattling now – but once he is in office, that reality might very well be shaped by political and budgetary reality.