Congress Can Protect Cannabis From the Trump Administration. Here’s How.

In the lead-up to the presidential election, it was hard to tell where candidate Donald Trump stood on cannabis. Supporters of both Trump and cannabis would tell you one thing, namely that the candidate had said he supported allowing states to do what they want on the issue. Skeptics, meanwhile, would note Trump’s ties to staunch legalization opponents such as Rudy Giuliani, Chris Christie, and Sheldon Adelson. Others simply threw up their hands; Trump had taken so many contradictory positions over the years, they noted, that trying to read the tea leaves wouldn’t get us very far.

On Friday morning, the skeptics found new reason for concern. President-elect Trump announced his pick for US attorney general, Sen. Jeff Sessions (R-Ala.), a longtime proponent of the war on drugs and an outspoken critic of cannabis.

Among the DC press corps, it’s generally agreed it was Sessions’s hardline stance on immigration that helped seal his nomination. But if confirmed by the Senate, he’ll do more than handle immigration. He’ll helm the US Department of Justice, directing federal law enforcement priorities across the country. Immigration might be front and center, but what he thinks about cannabis could certainly matter. His job is to go after bad guys, and he’s on record as saying “good people don’t smoke marijuana.”

Cause for concern?

The degree to which Sessions’s appointment could threaten state-legal cannabis programs has already become a matter of considerable debate. From what I saw on Friday, policy wonks and industry insiders generally fall into two camps: those who fear that AG Sessions would come down hard on state cannabis programs and those who point to his and Trump’s past statements in support of states’ rights.

Those in the latter camp also invoke the sheer scale of legalization today—not to mention its popular support. Post-election, 28 states now have medical cannabis programs. Eight plus DC have laws allowing consumption by adults 21 and older. Roughly 60 percent of Americans now support full legalization, with even more in favor of allowing medical use. Once a liberal issue, cannabis legalization has become a bipartisan one—in some states, a strong showing by Trump supporters actually propelled legalization measures past the finish line. And a CBS News poll from April found that no group was more emphatic than Republicans in their belief that state cannabis laws should be respected by the federal government. A full 70 percent of GOP voters told pollsters state laws should be left alone, far higher than either Democrats (55 percent) or independents (56 percent).

Could the Trump administration really ignore all that? Wouldn’t it be, as longtime legalization advocate Tom Angell said Friday, “a huge political misstep” for Trump to put legal cannabis in the crosshairs?

Yes, of course it would. But I’m not sure that’s enough of a reason to relax.

Let’s be very clear: Trump’s nomination of Sessions doesn’t necessarily tell us anything. It’s entirely possible a Trump administration would indeed respect state-legal cannabis programs, whether medical or adult-use. But it’s also possible Trump would do the opposite, allowing federal prosecutors to go after cannabis businesses in legal states. Consistency and predictability haven’t exactly been hallmarks of Trump’s political career so far.

As a thought experiment, let me sketch out how the Trump administration realistically could crack down on cannabis—even without Trump himself making it a priority. I’ll then explain how a simple congressional fix could go a long way toward protecting the cannabis community’s most vulnerable members.

Sessions isn’t the only federal prosecutor

First, let’s note that the AG position isn’t the only law enforcement post Trump will fill. He’ll also have the option of nominating new US attorneys in each of the 50 states to handle federal cases in those districts. The US attorneys follow Justice Department guidelines, but they also respond to local concerns. If Trump’s nominations so far have been any indication, the people he picks to fill those seats will be older, overwhelmingly white, conservative, and aggressively pro-law enforcement. Demographically speaking, that’s frequently the recipe for a prohibitionist.

If Trump-appointed US attorneys share Sessions’s views on cannabis, patients and consumers in legal states could be in for a rough ride. Even in states that have legalized, not all communities are quick to embrace cannabis. If a city or county has trouble running dispensaries out of town, local law enforcement or other elected officials could go to local US attorneys and call for help. From there, federal prosecutors could swoop in, filing federal criminal charges against state-legal operators and/or using federal asset forfeiture—or just the threat of it—to seize property and cash from business owners. As all this transpired, Trump could plausibly argue that he’d remained hands-off the whole time, allowing the matter to be resolved at the state level, more or less.

This isn’t just navel-gazing. It’s exactly what happened in California in 2011, when all four of the state’s US attorneys announced a coordinated crackdown on medical dispensaries. It occurred as thousands of dispensaries were springing up across the state, something many communities resented—and complained about. In response to the complaints, some cities and counties reached out to the feds for help. Before long, the enforcement effort had begun.

“The federal government has resources in terms of the US attorney’s office, DEA, and Internal Revenue Service,” Jeff Dunn, then a lawyer for the California city of Lake Forest, told me at the time. “They can take a combined agency approach, and that’s been very effective in the cities I represent.”

By “very effective,” Dunn meant they’d successfully shuttered dozens of dispensaries. Statewide, hundreds of storefronts closed within the year. In some areas, such as Los Angeles and San Francisco, prosecutors claimed they were targeting only the bad actors. But in other districts, around San Diego and Sacramento, prosecutors’ stated goal was to eradicate them all.

Remember, that 2011 crackdown took place in California, the first state to allow medical cannabis, and under President Barack Obama, who openly acknowledged his fondness for cannabis as a young man. Local law enforcement and federal prosecutors in California nevertheless teamed up to oppose legalization. Despite the persuasive political reasons Trump shouldn’t let it happen, it’s not hard to imagine something similar happening under his watch.

What you can do

There are two main protections that help guard legal states from federal interference. The first is what’s called the Cole memo, a Department of Justice document that essentially states the feds will allow legal states to govern themselves so long as they adhere to certain parameters. That’s not legally binding—it’s a DOJ-issued guideline, not a law—and if Sessions is confirmed, it will be up to him whether to uphold it.

The second protection is what’s known as the Rohrabacher–Farr Amendment. It’s a bipartisan provision that lives in a congressional spending bill, and it prevents federal prosecutors from spending any money to target state-compliant medical cannabis businesses. In August, the 9th US Circuit Court of Appeals published an opinion that interpreted the rule to mean that the Justice Department cannot spend money “for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.” In other words, the opinion said that as long as can demonstrate that you’re following state law, the feds can’t touch you.

That opinion is now binding precedent throughout the 9th Circuit.

Here’s the catch: The Rohrabacher–Farr Amendment is due to expire next month. After it sunsets, very little remains to protect state-legal cannabis programs from federal encroachment, especially if Sessions simply tears up the Cole memo. So it’s vitally important a similar protective measure be passed in its place. Whether through a simple renewal of the amendment or a full-throated descheduling of cannabis altogether, Congress could ensure that the Trump administration doesn’t undo legalization’s hard-earned gains.

Do lawmakers have the will? That’s a decisive maybe. Congress for decades has been reluctant to embrace cannabis reform, but that could change as it becomes clear public opinion is shifting. And while Trump spurned poll numbers during his campaign, most congressional candidates didn’t. With midterm elections just two years away, members of the House and Senate have much more to lose than Trump if they go against public opinion.

If you support state-legal cannabis programs, contact your elected officials and urge them to take steps to safeguard legalization from federal interference. Encourage them not only to renew Rohrabacher–Farr but to expand it to include protections for states that allow adult use. Remind them that cannabis reform is more popular with American voters than most politicians. Tell them you plan to vote.

If the Justice Department starts to signal a crackdown, do it again.

Even if the Trump administration chooses to ignore state-legal cannabis entirely, these will be positive steps. They’ll help provide peace of mind for the people who need it most: medical patients in states (even legal ones) that are still divided on legalization. Legitimate medical patients in these states still risk criminal prosecution to obtain medicine. We cannot ask them to risk more.