Wonkblog | Analysis
November 21, 2016 at 7:15 AM
Attorney general nominee Sen. Jeff Sessions (R-Ala.) is a fervent foe of marijuana legalization. But if he were confirmed as President-elect Trump's top law enforcement official, would he really have any power to put his anti-pot views into practice?
To review the postelection state of play, a majority of states have legalized medical marijuana and eight (plus the District of Columbia) have legalized recreational marijuana. But the federal Controlled Substances Act still defines production and sale of marijuana as serious crimes.
The Obama administration issued policy memos that curtailed federal enforcement of marijuana laws in legalization states. But because such executive branch directives do not bind successive administrations in any way, an Attorney General Sessions could immediately come down on the marijuana industry like a 400 pound bale of pot.
One could hardly imagine easier criminal cases for federal prosecutors to make. New York University professor Mark Kleiman points out that "Every legally licensed marijuana seller filled out and signed a form that documents their intent to commit a federal felony." In addition to arresting the owners and operators of marijuana selling companies, Sessions would have broad power under federal law to seize their assets. Actual federal prosecutions may not even be necessary: Simply threatening the industry with aggressive enforcement may be sufficient to induce producers and sellers to close up shop and lead investors to direct their money elsewhere.
Would anything constrain Sessions from putting the marijuana industry out of business? In the case of medical marijuana, the answer is almost certainly yes. The prior Congress used the power of the purse to prevent any federal enforcement against medical marijuana sellers and users, and the next Congress will probably be of a similar mind. The Department of Justice therefore couldn't even pay the postage on a letter from the attorney general ordering federal prosecutors into action against medical marijuana providers, no matter how egregiously they flout federal law.
The recreational marijuana industry does not enjoy comparable protection because it's concentrated in a smaller number of states and is tied to the political party that was thrashed on election night. The four newly legalizing states (California, Massachusetts, Maine and Nevada) backed Clinton, and the one state to reject legalization (Arizona) plumped for Trump. With the exception of Alaska, the places that previously legalized recreational marijuana are Democratic Party strongholds (The District of Columbia, Oregon and Washington State). Given those realities, and the fact that political donations by marijuana legalization lobbying groups and the industry go overwhelmingly to Democrats, any political collateral damage of a crackdown may be seen more as a feature than a bug by a Republican-controlled federal government.
More generally, although a majority of Americans say they support marijuana legalization when asked by a pollster, that doesn't mean consider it a political priority. Former marijuana policy lobbyist Dan Riffle describes support for legalization as "a mile wide and an inch deep." He adds "voters don't care enough to march in the streets about it."
Could the federal response to legal recreational marijuana be something other than Obama's hands-off approach or an industry-wide shutdown? Drug policy analyst Jonathan Caulkins proposes a third way: "Trump and Sessions could announce national standards for acceptable industry behavior and condition nonenforcement on compliance by marijuana sellers. For example, Sessions could effectively ban marijuana products that are combined with alcohol or tobacco, or which are packaged to look like candies and sodas. Aggressive marketing tactics, such as giving away free grams to entice new customers, could also be blocked."
Caulkins's vision of the federal government's enforcement role honors the voters' wish to have recreational marijuana legalized while at the same time limiting corporate profit-seeking tactics that could harm public health. Few people expect Sessions to be that Solomonic, but then again not many people expected Nixon to go to China either.