“Here’s Why Trump Can’t Beat Pot”
In this post from way back in December 2016, I suggested it could prove legally and practically difficult for the incoming Trump Administration to go aggressively after state-level marijuana reforms. The post was titled “why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive,” and it outlined some challenges that might arise were the Trump Department of Justice to try to bring back an era of national federal pot prohibition enforcement by executive fiat. This post’s title, which is much more catchy than my Dec 2016 title, comes from the headline of this lengthy BuzzFeed News piece by Dominic Holden. This BuzzFeed piece covers more effectively and systematically some of the issues and forces I had in mind back in December, and here are highlights:
Donald Trump said three times while campaigning that pot legalization should be left “up to the states.” But after five weeks in the White House, his former press secretary, Sean Spicer, announced that recreational marijuana — which was legalized by eight states without resulting in a crackdown by the Obama administration — has zero leeway under federal law. “I do believe you’ll see greater enforcement of it,” Spicer told the press corps.
Since then, lots of conventional wisdom says the White House can — and probably will — try to shut down America’s pot experiment. That wisdom looked particularly valid given that Trump’s chief law enforcement officer, Attorney General Jeff Sessions, has sharpened the attacks. He said in February that distributing pot remains illegal “whether a state legalizes it or not,” and turned the screws in March by warning federal prohibition “applies in states where they may have repealed their own anti-marijuana laws.”…
How, exactly, the Trump administration will approach this is TBD. The Justice Department is currently considering its options. At any time, though, Sessions and Trump could begin raids in Alaska, Colorado, Oregon, Nevada, and Washington state — where thousands of state-licensed pot businesses are already operating in the open. The administration could then argue in court that even issuing pot licenses is superseded by federal law.
Raiding farms and stores may seem simple, at first, but unlike federal pot busts in past years, targeting regulated state systems would present new legal disputes over states’ rights. BuzzFeed News’ interviews with law enforcement, former federal prosecutors, state officials, and conservative leaders show a crackdown would give rise to a hydra that pulls Trump into logistical, political, and legal traps — replicating his most humiliating setbacks like the travel ban (legal) and Obamacare (political).
Not only is legalization unprecedentedly popular, a crackdown has grown even more unpopular — and Trump would be destroying jobs in rural districts that voted for him. Possibly most damaging for Trump, though, is that he can’t fully win, because state decriminalization of marijuana cannot be completely stopped. “They have very limited tools, and I think none of them would be successful,” Jenny Durkan, who served as US attorney in Washington state in 2012 when legalization took hold there, told BuzzFeed News. “I just don’t think they can stick the genie back in the bottle.”
There are several paths Trump could take if he wanted to try anyway. Here’s why each one would be difficult, or even impossible.
1. Trump can’t bust all the legal pot businesses because there are way too many already. …
2. If Trump were to even threaten pot businesses, he would still end up in brutal court battles. …
3. Even if Trump only makes a few busts, the states will get involved and fight Trump, too. …
4. Trying to overturn state legalization laws themselves would be difficult and time-consuming — and could still fail. …
5. Fighting long legal battles would be unpopular for Trump, and it would grow more toxic by the day. …
6. Trump could never stop people from using and growing pot with impunity, even if he won in court. …
The reporting and analysis in this article merits considerable attention, but I want to put a bit of extra emphasis and spin on the key final point. Though aggressive enforcement actions and successful lawsuits would not enable federal officials to fully “beat pot,” the feds still could bring down much of the modern commercial marijuana industry. (And, importantly, there are even some folks supportive of marijuana reform who are not so supportive of the modern commercial marijuana industry.) I continue to believe a new federal weed war remains unlikely, but I also believe there will be notable casualties is such a war still gets waged in some capacity in the coming months.