The Nov. 8 election was a good night for supporters of marijuana legislation.
On that night, eight states approved new recreational and medical marijuana initiatives.
The pro-marijuana crowd hailed the election results as a national mandate, pointing to the latest national polls showing 61 percent of people in the United States now support marijuana legalization.
Recreational use of marijuana is now allowed for adults in seven states and Washington D.C. In addition, 24 states have passed laws allowing medical marijuana use.
But the enthusiasm among cannabis advocates was tempered by the election of Republican Donald Trump, who’s been ambiguous on the subject of legalizing recreational marijuana, and has friends in his inner circle who’ve been vocally against it.
Over the years, Trump’s stand on marijuana and drug laws in general has been largely laissez-faire but also characteristically contradictory.
In 1990, he told the Miami Herald he favored legalizing all drugs.
“We’re losing badly the war on drugs,” Trump said. “You have to legalize drugs to win that war. You have to take the profit away from these drug czars.”
At a rally last year in Nevada — where a referendum to legalize recreational marijuana was passed last week — Trump said, “In terms of marijuana and legalization, I think that should be a state issue, state-by-state.”
But Trump also said during his presidential campaign that Colorado has a “lot of problems right now” because of the state’s legalization of marijuana two years ago.
And then there’s Vice President-elect Mike Pence, who is no fan of legalization. Among other things, Pence called for an increase in penalties for possession of marijuana when he was Indiana governor.
Trump’s mixed signals, and the fact that many of his advisors have taken antimarijuana stances in the past, make it difficult to predict what his administration will do when it comes to marijuana and the law.
Paul Armentano, deputy director of the National Organization of the Reform of Marijuana Laws (NORML), told Healthline that while candidate Trump “has made inferences with regard to allowing states the flexibility to pursue their own marijuana regulatory schemes largely absent of federal interference, it is debatable the degree to which a Trump administration would follow the Obama administration position, particularly in states that are regulating and taxing the production and sale of marijuana for nonmedical purposes.”
Armentano said Trump has surrounded himself with politicians like Pence, New Jersey Gov. Chris Christie, Alabama Sen. Jeff Sessions, and former New York Mayor Rudy Giuliani, who have histories of ardent opposition to marijuana law reform.
“If they hold key positions within a Trump administration, it is possible that they may promote policies that by and large reflect their longstanding antimarijuana bias,” Armentano said.
Who will be America’s top cop?
The most important person in this equation, besides Trump himself, is who he chooses as attorney general, the person who runs the Department of Justice and is essentially America’s top cop.
No one, perhaps not even Trump, seems to know who will be named to that position.
The talk last week was that Giuliani, a former prosecutor, had the inside track to get the job.
But Giuliani, who has long opposed marijuana legalization, is now reportedly among the frontrunners to be named secretary of state.
Meanwhile, Christie is now apparently on the outside of Trump’s circle looking in.
Among the latest names being bounced around in the press as the next attorney general is Texas Sen. Ted Cruz, who’s not personally a fan of marijuana but has consistently said that its legislation should be left up to the states.
At the 2015 Conservative Political Action Conference, Cruz described state initiatives on marijuana as the “great embodiment of what Supreme Court Justice Louis Brandeis called ‘the laboratories of democracy.’ If the citizens of Colorado decide they want to go down that road, that’s their prerogative. I don’t agree with it, but that’s their right.”
Others who are reportedly in the running include Sessions, who’s among the nation’s most outspoken critics of marijuana and those who smoke it.
In a hearing last April, the Senate Caucus on International Narcotics Control looked at whether the Department of Justice was properly enforcing marijuana laws. During the hearing, Sessions said marijuana is “dangerous, you cannot play with it, it’s not something to laugh about,” according to a story in The Washington Post.
Sessions also added that “good people don’t smoke marijuana.”
When President Ronald Reagan nominated Sessions to be a federal court judge, Thomas Figues, a former assistant U.S. Attorney, testified at the confirmation hearing that Sessions told him he thought the Ku Klux Klan was “OK until I found out they smoked pot.”
Another name that continues to come up as the possible next attorney general is Kansas Secretary of State Kris Kobach, who’s best known as a staunch believer in racial profiling.
It’s unclear how Kobach, a former Bush administration official and anti-immigrant hardliner, would legislate on marijuana.
“At this point, we have no clue who the new [attorney general] will be, and while Trump was solid in supporting medical marijuana, it was legalization that he never nailed down,” said Hilary Bricken, editor of the Canna Law Blog, and partner at Harris Moure law firm in Seattle whose practice represents marijuana businesses.
Bricken, who describes Trump as “marijuana’s wild card,” told Healthline that her hope is that marijuana is “a low-enforcement priority in Trump’s administration and that they let the states proceed. But I don’t know if that will happen.”
Suing individual states?
One of the biggest concerns for Bricken and other marijuana advocates is that Trump’s attorney general could conceivably sue an individual state for approving a marijuana initiative that is technically in violation of federal law.
“A consequence of appointing a more conservative [attorney general] that doesn’t respect marijuana legalization is that the DOJ could sue any legalized state in federal court to overturn the law,” Bricken said.
She said this would be based on the theory that federal law preempts state law, and state marijuana legalization actively conflicts with the federal controlled substances act, “though many policy experts and attorneys disagree with this and don’t believe the DOJ would prevail.”
Bricken said California could make a good target for such a lawsuit because the legal marijuana program created by Proposition 64, the recreational use initiative that was approved on Nov. 8, isn’t implemented yet.
“In the event DOJ sues California in federal district court and wins, California would likely appeal that victory to the Ninth Circuit Court of Appeals, which is not super pot-friendly,” Bricken said. “If California loses in the appeals court, the case will then go up to SCOTUS [U.S. Supreme Court], and it’s anyone’s guess how they would decide that matter. But if California loses there, pretty much all legalization initiatives would be overturned.”
But she added that if Trump did go after marijuana businesses in states where it is now legal, the backlash in a nation where marijuana is quickly gaining acceptance would be quick and profound.
There is some room for optimism here, though, some officials say. Obama’s Department of Justice was actually quite aggressive when dealing with marijuana offenders. That only softened a bit in the past three years of his administration.
While it seems counterintuitive to many, a Trump administration could be better in terms of marijuana laws than Obama was for much of his two terms.
Or it could be much worse. It’s just too soon to tell.
NORML’s Armentano noted that Trump has shown “an acuteness at tapping into voter frustration and may take heed in the fact that marijuana law reform proved to be more popular this election than either of the major political party’s presidential candidates.”
Ultimately, he said, the answer to the question of what a Trump administration will do with regard to marijuana will be better revealed “after Trump’s cabinet is in place, and after the new administration has had an opportunity to fully recognize the changing political, legal, and cultural landscape as it pertains to cannabis.”