Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, August 28, 2017

"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it or not,” and turned the screws in March by warning federal prohibition “applies in states where they may have repealed their own anti-marijuana laws.”...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 The administration could then argue in court that even issuing pot licenses is superseded by federal law.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.

http://lawprofessors.typepad.com/marijuana_law/2017/08/heres-why-trump-cant-beat-pot-.html

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Comments

I've got a question I'd like explained to me by an expert of law. If 26 states and Washington DC have legalized marijuana in some form, how does that not constitute a majority vote for the entire country? And a secondary question directly related to that, can that not be considered a violation of the people's rights in the states that haven't legalized marijuana that the other more than half the country is allowed access to marijuana? Thank you in advance for your thoughts on this

Posted by: Justin Yates | Sep 1, 2017 3:55:21 AM

These are reasonable questions, Justin, but US democracy and constitutional rights do not quite work this way. For the federal government and any state to legalize MJ, it has to be done through the law-making process of that particular jurisdiction. And the Supreme Court has never held that having a law changed in more than 1/2 the states establishes a constitutional right (though people may keep asking the Supreme Court and lower courts to view rights this way in this context).

Posted by: Doug B | Sep 1, 2017 6:42:51 AM

Prof. Berman. The Supreme Court has used acceptance by 26 states as an argument to support some decisions.

Do we not have a Full Faith and Credit Clause? Is your legal marriage in one state not recognized in other states, or your driver's license? License, means permission. How does permission to use marijuana for pleasure in Colorado differ from a Colorado marriage or driver's license when in another state?

The Clause is plain. It does not allow for subjective regulatory feelings. If it did, that exception would be a threat to national unity, an undesirable policy.

https://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause

Posted by: David Behar | Sep 3, 2017 5:53:07 PM

I am not an expert on the FFC Clause, David, but I am pretty sure that a state that allows a kid to get a drivers licence at age 15 does not, in turn, authorize that kid to drive legally in another state that sets a higher limit. A state that allows you to carry a machine gun in public does not, in turn, allow you to carry that same gun in public in another state. A state that allows you to drive 75 on its highways does not become of license to drive 75 on all highways. And so on. (And I believe marriage is generally recognized cross-state as a matter of statute.)

Long story short, in the CJ/regulatory arena, some measure of state variation and individualization is permissible.

Posted by: Doug B | Sep 4, 2017 7:47:12 AM

Prof. Berman. Your point was made by the US Supreme Court in 1935. If Justin wants a technical review, he may try this:

http://law.emory.edu/elj/content/volume-62/issue-3/comments/between-judgement-and-law.html

Here is the dictionary definition of the word, full:

"not lacking or omitting anything; complete."

That case is another example of law making from the bench, and the violation of Article I Section 1 by judicial review. Justin, that section gives lawmaking power to the Congress and to nothing else.


Posted by: David Behar | Sep 5, 2017 4:39:47 AM

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