Since the 1970 Controlled Substances Act, cannabis has been classified by the federal government as a Schedule 1 drug, or a substance with no medical use and a high risk for abuse. That means that, although legal in 28 states plus Washington D.C., cannabis is federally illegal.
In 2013, the Obama-led Justice Department put out the Cole Memo, or a statement addressing the way the federal government should prioritize the prosecution of marijuana use in Colorado and Washington, the two states that had just legalized recreational use. The statement basically asserted that the Department of Justice would put a low priority on businesses operating in compliance with their states’ marijuana laws.
Then Press Secretary Sean Spicer said this about recreational marijuana: “I do believe you’ll see greater enforcement of it […] When you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people. There is still a federal law that we need to abide by.”
What happens if the feds decide to stomp on state marijuana laws? Here’s what the experts have to say.
Sam Kamin on Federal Laws
Sam Kamin, Vicente Sedergberg professor of marijuana law and policy at the University of Denver’s Sturm College of Law, Kamin has explained three ways that the Trump administration could undermine the state legalized marijuana industry: judicially, executively, or congressionally.
According to Kamin, even if US Attorney General Jeff Sessions made a blanket announcement that the marijuana industry needed to be shut down, he would have to explore several routes to actually execute that plan.
One of those routes is judicial. The feds could essentially sue each legalized state arguing that federal law preempts state law, rendering any marijuana legalization unconstitutional. However, if this type of lawsuit is successful, the federal government would only be able to challenge the state’s ability to regulate and tax the plant. Essentially, the federal government can’t stop a state from decriminalizing cannabis, but it can stop it from regulating it.
If the feds wanted to take a more direct route, they could simply use the DEA to enforce the Controlled Substances Act
If there were an unlimited amount of DEA agents and literally nothing else to do, the feds could basically arrest people out of compliance with the federal law (growers, manufacturers, dispensary owners, dispensary employees) en masse. Because there are a limited amount of resources, the DEA may choose to enforce the law in a slightly less dramatic, expensive way.
The federal government could send letters to dispensaries indicating that they are out of compliance with the law and must shut down. This actually happened in Colorado back in 2012 when dispensaries were identified within 1000 feet of school buildings. That strategy worked. The dispensaries complied and closed down.
The third method Kamin discusses is congressional. Congress holds the purse and could potentially use money as an incentive for states to either revert to or remain in prohibition. For example, Congress could threaten to withhold funds until a state complies with federal law.
Ultimately, Kamin argues that none of these methods seems particularly likely since legal cannabis use is more popular with the American people now than ever. But Kamin admits that Trump’s unpredictability makes it hard to know what the future holds for the cannabis industry.
Jesse Alderman, Foley Hoag LP Lawyer, Despite the warning signs that the Trump administration may be gearing up to crackdown on recreational marijuana use, Alderman isn’t too worried about a complete eradication of the legal pot industry.
In a statement to Business Insider, Alderman stated, “ my personal hunch is that he’d like to [overturn the Cole Memorandum], but this administration, whether it believes it or not, has pretty glaring net unpopularity in the polls. The regulated sale and decriminalization of cannabis is uniquely popular across the political spectrum and particularly with Trump’s blue-collar, libertarian-minded core voter.”
The Cole Memorandum makes federal prosecution of marijuana in states that have legalized its use difficult since it stipulates that the feds place “low priority” on marijuana law enforcement as long as businesses operate within the constraints of their states’ laws.
Jonathan Caulkins, Research Professional
Jonathan Caulkins, professor of operations research and public policy at Carnegie Mellon University in Pittsburgh; former co-director of RAND’s Drug Policy Research Center, Like Kamin, Professor Caulkins noted the ease with which the federal government could simply write a letter mandating that dispensaries shut down their facilities within a certain time frame or face criminal prosecution and the seizure of assets.
Since marijuana is illegal, the money accumulated from the sales could defensibly be seized by the DEA .
Caulkins stated, “It’s very hard to shut down a black market. It’s easy to shut down a legal company with a fixed address and fixed assets.”
This letter-writing method doesn’t cost the federal government a dime and has been used effectively in the past. If the Trump administration takes this route, it may take only a few closures of major dispensaries to chill the entire market.
Robert Mikos, Vanderbilt Law School professor, A specialist in federalism and drug law, Mikos noted that a judicial route would be difficult for the Trump administration to find victory in. The first obstacle that the DEA would face would be securing U.S. attorneys willing to go to war with their states and the current pro-legalization sentiment changing the minds of Americans across the country.
The Trump administration still needs to replace a significant amount of US attorneys from the country’s 94 districts, and many of the current US attorneys may not share Jeff Session’s antagonistic attitude toward cannabis.
Even if the Justice Department is able to gain some momentum in creating a new marijuana policy, appointing new US attorneys and initiating prosecutions could take months and cost the federal government resources it doesn’t have to spend.
Mikos’ final assessment?
“All it may ultimately succeed in doing is driving the industry underground for a short time until we get a new president or until we get a new Congress in less than two years,” he concluded.