Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, February 27, 2017

Heritage Foundation expert provides road map for big government feds to crack down on marijuana enterprises

Stimson_Cully_0This webpage discussing the mission of the Heritage Foundation states at its outset that "free enterprise, limited government, individual freedom" are among the principles that that the group "fights for every single day." But when it comes to marijuana law and policy, it seems these principles become much less important given this new Daily Signal commentary authored by Charles “Cully” Stimson of The Heritage Foundation’s Center for Legal and Judicial Studies.  The piece is headlined "How Trump’s DOJ Can Start Enforcing Federal Marijuana Law," and in it Stimson provides a detailed road map for how the large federal government can try to crush free enterprise and individual freedom in marijuana legalization states. Here are the essentials of the piece (with links from the original):

Thorough scientific reviews by President Barack Obama’s Food and Drug Administration and Drug Enforcement Administration — as well as drug classification reviews by federal judges — have affirmed that marijuana should remain a Schedule 1 drug. Such drugs are defined as having “no currently accepted medical use and a high potential for abuse.”

As I have written here and here, the predictable consequences of marijuana legalization are beginning to emerge in states like Colorado and Washington.  Annual reports from the Rocky Mountain High Intensity Drug Trafficking Area, Smart Approaches to Marijuana, and the Colorado Department of Public Safety have analyzed the negative impact that marijuana legalization has had on health and public safety in Colorado.

 With such research finally emerging, the Trump administration and the Department of Justice are in a strong position to enforce federal law and take appropriate and aggressive action in crafting a commonsense drug enforcement policy for marijuana. The Trump administration should consider the following actions:

  • Reaffirm support for the law....
  • Coordinate with lower-level officials....
  • Reassert America’s drug position on the world stage....
  • Up the profile of key drug enforcement personnel....
  • Rescind and replace the August 2013 memorandum from then-Deputy Attorney General James M. Cole—i.e. the “Cole Memo.”...
  • Select marijuana businesses to prosecute....
  • Rescind the Financial Crimes Enforcement Network’s guidance for banks and oppose efforts to expand banking services to the marijuana industry....
  • Support state attorneys general in nonlegalized states....
  • Prosecute those dealing in marijuana—which is illegal under federal law—using the Racketeer Influenced and Corrupt Organizations Act (RICO)....
  • Prosecute those who provide financing for marijuana operations....
  • Empower the FDA to take action to regulate marijuana in order to protect patients and the public....
None of these recommendations advocate criminal prosecution for simple possession of marijuana. Enforcing federal marijuana laws should not be about putting people in jail....

Thus, it has not been the case and should not be the case that people are criminally prosecuted and jailed for simple possession of small quantities of marijuana. However, the recommendations listed above provide a targeted approach to marijuana enforcement that focuses on protection, not punishment. These recommendations should be part of any commonsense approach that is consistent with an interest in public health and safety.

Recent comments by the White House press secretary (covered here) and also by the Attorney General (covered here) has me starting to think that the Trump Administration might be quite seriously considering many of Stimson's big government suggestions for the future of federal marijuana policies and practices.

A few prior related posts:

February 27, 2017 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

AG Sessions comments negatively on state marijuana reform

As detailed in this new AP article, headlined "Sessions: More violence around marijuana than ‘one would think’," the US Attorney General had a few not-so-nice things to say about state marijuana reforms today. Here are the details:

The Justice Department will try to adopt “responsible policies” for enforcement of federal anti-marijuana laws, Attorney General Jeff Sessions said Monday, adding that he believes violence surrounds sales and use of the drug in the U.S.

In a meeting with reporters, Sessions said the department was reviewing an Obama administration Justice Department memo that gave states flexibility in passing marijuana laws. “Experts are telling me there’s more violence around marijuana than one would think,” Sessions said....

Sessions stopped short of saying what he would do, but said he doesn’t think America will be a better place with “more people smoking pot.”

“I am definitely not a fan of expanded use of marijuana,” he said. “But states, they can pass the laws they choose. I would just say, it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.”...

Studies have found no correlation between legalization of marijuana and violent crime rates. But law enforcement officials in states such as Colorado say drug traffickers have taken advantage of lax marijuana laws to hide in plain sight, illegally growing and shipping the drug across state lines, where it can sell for much higher.

Pot advocates say the officials have exaggerated the problem. “You can’t sue somebody for a drug debt. The only way to get your money is through strong-arm tactics, and violence tends to follow that,” Sessions said.

Sessions said he met with Nebraska’s attorney general, who sued Colorado for allegedly not keeping marijuana within its borders. That lawsuit was dismissed by the U.S. Supreme Court, but neighboring states continue to gripe that Colorado and other pot-legal states have not done enough to keep the drug from crossing their borders.

February 27, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, February 25, 2017

California folks gearing up for possible fight with feds over marijuana law and policy

DownloadThis new lengthy Los Angeles Times article, headlined "California officials and the marijuana industry are ready to fight a federal crackdown," reports on what folks on the Left Coast are thinking and saying in the wake of  the recent comments from White House press secretary Sean Spicer suggesting the Trump Administration might be ramping up federal enforcement of blanket marijuana prohibition.  Here are excerpts:

Warned of a possible federal crackdown on marijuana, California elected officials and cannabis industry leaders said Friday they were preparing for a potential showdown in the courts and Congress to protect the legalization measure approved by state voters in November.

The flashpoint that set off a scramble in California was a news conference Thursday at which White House Press Secretary Sean Spicer told reporters that the administration had no plans to continue the Obama administration's permissive approach in states that have legalized marijuana for recreational use. "I do believe that you'll see greater enforcement,” he said, adding that the administration would continue to allow states to regulate the sale of marijuana for medical use.

The latest development could force California officials and marijuana industry leaders into an unusual alliance against the federal government, with billions of dollars in profits for businesses and taxes for state coffers at stake.

The state agency responsible for drafting regulations said Friday it was going ahead with its plans to start issuing licenses to growers and sellers in January. “Until we see any sort of formal plan from the federal government, it’s full speed ahead for us,” said Alex Traverso, a spokesman for the California Bureau of Medical Cannabis Regulation.

California Atty. Gen. Xavier Becerra says he is ready to safeguard the rights of the 56% of voters who approved Proposition 64, which allows California adults to possess, transport and buy up to an ounce of marijuana for recreational use. “I took an oath to enforce the laws that California has passed,” Becerra said in a statement Thursday after Spicer’s comments. “If there is action from the federal government on this subject, I will respond in an appropriate way to protect the interests of California.”

State lawmakers also say California should do what it can to preserve Proposition 64. “We will support and honor the laws that California voters have democratically enacted,” said Assemblyman Rob Bonta (D-Oakland), an author of legislation creating the licensing system for medical marijuana dispensaries.

Becerra would likely be joined in any defense of the state’s marijuana policy by attorneys general in other parts of the country. Recreational use has also been legalized in Washington state, Colorado, Oregon, Alaska, Maine, Massachusetts and Nevada, home to a combined 68 million Americans.

Washington Atty. Gen. Bob Ferguson, who has worked with Becerra on opposing President Trump’s travel ban, said he and Democratic Gov. Jay Inslee last week asked for a meeting with U.S. Atty. Gen. Jeff Sessions to discuss how the recreational marijuana use system is working in their state.

California Lt. Gov. Gavin Newsom, a leading supporter of Proposition 64, took a similar approach, sending a letter Friday to Trump urging him not to carry through with threats to launch a federal enforcement effort. “I urge you and your administration to work in partnership with California and the other … states that have legalized recreational marijuana for adult use in a way that will let us enforce our state laws that protect the public and our children, while targeting the bad actors,” the Democrat wrote.

If the Justice Department starts arresting licensed marijuana sellers, the multibillion-dollar industry would join forces with the states that issue permits to challenge the action in court, said Amy Margolis, an attorney whose law firm has more than 200 clients in the marijuana industry, including businesses in California. “This industry is so mature and it’s so far along that I have no doubt that if the Department of Justice started true enforcement actions against cannabis businesses, that they would go to court,” Margolis said. “I see joint actions between the states and the industry hoping to prevent those type of actions.”

Margolis would argue that it is a states’ rights issue. “The argument would be that this is a situation where the states have the right to regulate and tax an industry the way they want,” she said, adding that states are gaining tax revenue to pay for government programs....

However, the states may find their hands tied legally if they try to keep federal agents from raiding and shutting down marijuana growing and sales operations, according to Adam Winkler, a professor at UCLA School of Law. “I imagine that California will mount a legal challenge to any crackdown on recreational marijuana,” Winkler said. “Yet there is not much California can do. Federal law is supreme over conflicting state law. Federal agents are entitled to enforce federal law anywhere in the country, including California.” He said there are limits to federal power, but the courts have held that the federal government does have the authority to enforce federal drug laws.

Aaron Herzberg, an attorney for the industry, agreed that the state would face a tough fight. He cited the 2005 case Gonzales vs. Raich, in which the U.S. Supreme Court found that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown marijuana even if states approve its use for medical purposes. “Let's face it: If the federal government wants to shut down recreational marijuana they could quite easily accomplish it using federal law enforcement and taxation tools,” Herzberg said.

Others say one basis for legal action would be an argument that enforcing laws against marijuana would damage states that have put regulations in place and are depending on hundreds of millions of dollars in taxes to pay for government programs. States are too far down the path of regulating, licensing and taxing those who are making big investments in the sanctioned marijuana industry to pull the rug out now, said Richard Miadich, an attorney who co-wrote Proposition 64....

Because Spicer did not provide details on what an enforcement effort might look like, many in the industry hope it will focus on the illegal exporting of marijuana to other states, leaving alone state-licensed firms that grow and sell pot. “The biggest crackdown we may see is on the increase of cannabis being illegally exported out of recreational states,” said Nate Bradley, executive director of the California Cannabis Industry Assn.

Prior related post:

White House press secretary hints of "greater enforcement" by feds of marijuana prohibition in recreational marijuana states

February 25, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (2)

Thursday, February 23, 2017

White House press secretary hints of "greater enforcement" by feds of marijuana prohibition in recreational marijuana states

As reported in this Politico article, "White House press secretary Sean Spicer said Thursday that he expects states to see 'greater enforcement' of the federal law against marijuana use, a move that would be at odds with a growing number of states’ decisions to legalize it." Here is more:

Spicer, taking questions from reporters at the daily briefing, differentiated between the administration’s positions on medical marijuana and recreational marijuana. President Donald Trump “understands the pain and suffering that many people go through who are facing especially terminal diseases, and the comfort that some of these drugs, including medical marijuana, can bring to them,” he said, also noting previous action by Congress not to fund the Justice Department “go[ing] after those folks.”

As for “recreational marijuana, that’s a very, very different subject,” Spicer said.

Spicer suggested that the administration is opposed to encouraging recreational marijuana use and connected it with the crisis with opioid addiction in some areas. “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,” he said.

The Department of Justice, Spicer said, will be “further looking into” the marijuana enforcement question, he said, punting questions about the specifics to the department. “I do believe that you'll see greater enforcement of it,” he said.

February 23, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)

Wednesday, February 8, 2017

Jeff Sessions confirmed as Attorney General ... now what for federal marijuana policy?

Jeff_Sessions_official_portraitAs Fox News reports here, "Sen. Jeff Sessions won confirmation Wednesday evening to become the next attorney general of the United States," and here's more of the basic backstory:

The Senate narrowly approved the Alabama Republican’s nomination on a 52-47 vote, the latest in a series of confirmation votes that have been dragged out amid Democratic protests. One Democrat, Joe Manchin of West Virginia, joined Republicans in voting to confirm Sessions. Sessions himself voted present.

In his farewell address Wednesday evening, Sessions urged his erstwhile colleagues to get along better following days of bruising debate. "We need latitude in our relationships," Sessions said. "Denigrating people who disagree with us is not a healthy trend for our body."...

Wednesday’s vote came after a rowdy overnight session during which Sen. Elizabeth Warren, D-Mass., was formally chastised for allegedly impugning Sessions’ integrity on the floor. Warren had read a letter authored in 1986 by Coretta Scott King, who was against Sessions’ nomination at the time to the federal bench, arguing he used the power of his office to “chill” black voting rights. Warren also quoted the late Sen. Ted Kennedy, D-Mass., who originally had entered King’s letter into the record, describing Sessions as “disgraceful.”

GOP Senate leaders said Warren had violated Senate rules and should lose her speaking privileges. In a remarkable scene, the Senate then voted 49-43 to suspend Warren’s speaking privileges for the rest of the nomination process – the first time the Senate has imposed such a punishment in decades.

Democrats had repeatedly contended that Sessions is too close to Trump, too harsh on immigrants, and weak on civil rights for minorities, immigrants, gay people and women. Sessions was a prominent early backer of Trump, a supporter of his hard line on illegal immigration and joined Trump's advocacy of a wall along the U.S.-Mexico border....

Republicans argued Sessions has demonstrated over a long career in public service, including two decades in the Senate, that he possesses integrity, honesty, and is committed to justice and the rule of law.

Everyone in the marijuana reform community as well as all those working in the marijuana industry must now continue to wonder what an Attorney General Sessions will mean for the policy and practice of blanket federal marijuana prohibition.

In part because I think AG Sessions will have other top priorities and because a crackdown on state-legal marijuana businesses will likely be costly and unpopular, I am not expecting to see a radical shift in the short term.  But I could be wrong, and I am fairly sure that over time AG Sessions (and others in the Trump Administration) will still feel some significant obligation (and perhaps have some significant desire) to ramp up enforcement of federal marijuana prohibition to some extent unless and until Congress moves forward with some kind of statutory reforms.

Uncertain and interesting times ahead, for sure, in this space.

February 8, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Tuesday, February 7, 2017

Notable commentators making notable arguments against marijuana legalization

2014_0128_hudson_headshots_2356The Weekly Standard has this notable new commentary authored by John Walters (pictured here), David Murray and Brian Blake under the headline "The Risky Business of Commercial Marijuana."  The authors are notable because they all served in the Office of National Drug Control Policy during the George W. Bush administration, and because there is some talk of Walters serving as the "Drug Czar" in the Trump Administration.  The commentary is notable for a few curious arguments made against marijuana reform, although the piece is styled as a warning to those who might be inclined to invest in the marijuana industry.  Here are the excerpts that I found curious:

[L]egalization advocates have pointed to surging support for legal, recreational marijuana as found in public polling—reaching 60 percent positive, according to recent opinion results.

Beyond concerns over the reliability of polling projections, positive opinion polls on marijuana are of recent vintage, occurring in the midst of an eight-year period where our nation was led by an Administration that downplayed marijuana's threat, tacitly approved of its state-level legalization, and made no effort to enforce federal law.

Greater acceptance of legal marijuana has also been sustained, if not propelled, by irresponsible cheerleading in the press. Most importantly, this support has been built on assertions that are clearly not true....

As the key arguments for legal marijuana collapse, the public will increasingly confront a much darker reality as escalating reports of harms become inescapable.

There is already evidence that support for legal marijuana is much softer than the advocates assert. Candidates in the last election cycle expecting political support from libertarian conservatives or hoped-for hordes of pro-marijuana college youth, found that they failed to materialize in sufficient numbers to prevent defeat, a lesson that proved costly for the Democratic party....

Investors seeking hot prospects may be better served by ignoring the flashy market assessments issued by investment firms, who really should know better. The position is worsening as more bad news comes in from legalizer states....

All of the dangers have been known for some time — visible to anyone who ignored the hype and paid attention to the drug-dealing facts. Certainly adding to these concerns is the new uncertainty regarding marijuana enforcement in the sharply altered political landscape created by the most recent election. Investors beware.

Elsewhere in the commentary, these authors make reasonable (though debatable) arguments that marijuana legalization does not really address mass incarceration or eliminate the black market to prevent youth access as reformers promise. But the notion of a "darker reality [with] escalating reports of harm" as "more bad news comes in" seems more than a bit too dystopian in light of lots of positive reports emerging from Colorado and Washington. And pointing to the last election cycle to claim that "support for legal marijuana is much softer than the advocates assert" whistles past the critical reality that recreational marijuana prevailed in four out of five state in November 2016 (including California and Massachusetts) and that medical marijuana won big in four red states.

That all said, if the authors of this commentary have a central role in deciding federal policy in the new Administration, the final two sentences quoted above are very significant and the final word say it all: "beware."

February 7, 2017 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, February 6, 2017

"State Legalization of Marijuana and Our American System of Federalism: A Historio-Constitutional Primer"

The title of this post is the title of this notable new paper authored by Brian Blumenfeld now available via SSRN. Here is the abstract:

Federal law, pursuant to the Controlled Substances Act, maintains a strict criminal prohibition on marijuana use of any kind.  In states that have legalized marijuana, and in states proposing to do so, a fundamental conflict arises between federal powers and state sovereignty.  This conflict implicates some of the most vital aspects of the structural constitution: the Commerce Power, the Necessary and Proper Clause, the anti-commandeering doctrine, and Supremacy Clause preemption.

In recent years a healthy scholarship has emerged to wrestle with the subject, providing insightful commentary and argument, but missing in the literature is an unabbreviated account of the major features of federalism that frame the legalization controversy.  Also missing is a historical background situating the CSA's marijuana prohibition within the American political-legal tradition.

This article provides the reader with an extensive constitutional and historical foundation for understanding what is now recognized as "the most pressing and complex federalism issue of our time."

February 6, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, February 4, 2017

Is the marijuana industry now "too big to jail"?

The question in the title of this post is prompted by this recent Los Angeles Times article, which is headlined "Trump's Justice Department may crack down on thriving pot industry, but is it too big to jail?".  Here are excerpts:

The election of Trump has shocked the marijuana industry into a state of high alert at a time it had planned to be gliding into unbridled growth. Trump’s nominee for attorney general, Alabama Sen. Jeff Sessions, is a longtime field lieutenant in the war on drugs with unabashed hostility toward pot. It was only 10 months ago that Sessions was scolding from the dais of a Senate hearing room that the drug is dangerous, not funny and that “good people don’t smoke marijuana.”

Now he is poised to set the direction on national drug enforcement policy at the same time that eight states, including California, have legalized recreational use of the drug. Some 60 million Americans are living in states where voters have opted to allow any adult to be able to purchase marijuana.

Business leaders ... are betting the rapid maturity of the cannabis industry has made it too big to jail. Even before new laws took effect permitting the recreational use of pot in the massive markets of California and Massachusetts, the legitimate pot business had dwarfed its 2011 size, when the Drug Enforcement Administration was still aggressively raiding medical marijuana vendors operating legally under state laws. Since then, President Obama’s Justice Department decreed that states should have freedom to pursue their own policies, and the legalization train seemed to have left the station.

But those who have been in the business since the early days of medical marijuana caution the legions of newcomers that federal busts and seizures could quickly make a comeback. Sessions very deliberately left that option open during his confirmation hearing. “There are people in this administration who will crush this industry if they see the opportunity,” said Steve DeAngelo, who is considered a guru among pot entrepreneurs. DeAngelo, owner of the bustling Harborside Health Center dispensary in Oakland, was among the first in the industry and he has experienced it all: surprise raids from armed federal agents, unending lawsuits, getting locked in a jail cell. “I don’t think people who don’t have firsthand experience with the irrationality of federal intervention understand what a threat we are facing.”

But it’s hard to see much anxiety watching the comings and goings inside DeAngelo’s dispensary, which these days looks more like a Whole Foods than the shady corner bodegas such operations long resembled. Well-mannered hipsters with encyclopedic knowledge of bud patiently serve customers as sommeliers might, explaining the intricacies of abundant varietals of reefer available to be consumed in ever-evolving ways. On one side of the room is an enticing display of pot-laced baked goods, opposite that is the kind of fancy kiosk where artisan granola bars or yogurt cups might be hawked in a high-end grocery; the millennials manning this one are pitching elegantly packaged microdoses of pot injected into dried blueberries and other goodies.

DeAngelo says Trump might just let it all be, pointing to mixed signals the president sent during the campaign. But DeAngelo sees an easy legal path for Sessions and other committed anti-drug warriors in the administration, including Vice President Mike Pence, to immediately throw the industry into chaos, should they chose to do so. A survey by Marijuana Business Daily suggests many pot entrepreneurs share his concern, with 20% saying they would curb expansion plans. Many more are putting planning off until they see where the White House is going.

“Most of us are holding our breath right now,” said Emily Paxhia, co-owner of a hedge fund that invests exclusively in the cannabis industry. Lately she has been making sure that each firm in her portfolio has a Plan B in case a federal crackdown comes. Can pot growing operations, for example, shift to micro-salad greens if the feds come knocking? Can vaporizers be sold to yoga enthusiasts consuming lavender? “We’re also starting to look at how some of the new technologies we are investing in could address needs in other countries if the U.S. becomes difficult,” Paxhia said, pointing to Canada, where she said federal embrace of recreational marijuana could open up a $22-billion market. Paxhia shared her outlook at the industrial San Francisco office space of one company in her portfolio, Meadow, which has built a digital platform through which marijuana dispensary offerings can be browsed, and products can be ordered and delivered with the ease of a service like GrubHub....

Across the bay in Oakland, a sober-looking team at a company called CW Analytical has just spent big on sophisticated new testing equipment that allows dispensaries to quickly measure the active ingredients and purity in all the pot products they sell. The company embodies how renewed federal busts would affect not just pot growers, but an entire class of lab technicians, scientists, digital engineers, marketers and other skilled professionals. “I would be lying if I told you it was not in the back of our minds,” said Emily Richardson, head of business development at CW. “We have been through a lot.” She said the firm lost a third of its business amid the last big round of federal raids in 2011. Back then, Jeff Linden wasn’t even in the trade. He was running a high-end kitchen cabinet firm. Now Linden has opened a dispensary in San Francisco’s Mission District that could be mistaken for an art gallery.....“Trump’s agenda is this long,” Linden said, stretching out his arms to make the point the new administration has bigger issues on its plate than him. “I think this industry is too big to roll back. Some people agree with me. Some are very nervous.”

My answer to the basic post question is that there are a whole lot of players who could be in line for a whole lot of trouble in the Trump Administration decides to go hard after the industry, but that the entire industry has too many elements and extensions to be completely destroyed even if that was the express desire of the Trump team. And, for a host of reasons, I think the Trump team (including future AG Sessions) is going to be eager to focus their resources elsewhere.

February 4, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, February 3, 2017

"If President Trump wants to help American businesses, he should start by legalizing marijuana"

The title of this post is the title of this notable new Los Angeles Times commentary authored by Mark Stefanos.  Here are excerpts:

Trump himself has been all over the board on pot, expressing support for medical marijuana but also concerns about Colorado, where it’s recreationally legal. He generally seems to favor leaving it up to the states to decide.

Sure, it’s hard to picture Trump as marijuana’s champion. Unlike the last three presidents, Trump claims he’s never toked. He doesn’t drink, he orders his steak well-done and it’s unlikely anyone will ever pass a blunt to the self-described germaphobe.

But if legalizing marijuana federally isn’t on Trump’s legislative agenda, it should be. And a conservative Congress should back him. It’s politically expedient, fits neatly into Trump’s game plan and there are principled conservative arguments to be made on legalization’s behalf.

Outside of his core issues, our new president is no ideologue, and instead seems to be fixated on — and can be swayed by — public opinion. If his inauguration speech was any indication, Trump is doubling down on populism — and legalizing pot is incredibly popular.

The latest Gallup poll shows 60% of Americans favoring legalization, including 77% of 18- to 34-year-olds. With some of the weakest approval ratings for an incoming president, he should be looking to capitalize on low-hanging-fruit policies like these. Trump shouldn’t worry too much Trump shouldn’t worry too much about legalization alienating his base. The same Gallup poll shows that 42% of Republicans support legalization, up from 20% in 2005. And if anyone needs convincing, Trump can make the case.

He can appeal to the right by reminding us that the government isn’t our mommy. We’ve already learned the lesson that prohibition doesn’t work from alcohol, a far more dangerous drug. Enforcement of prohibition is a pointless and wasteful priority. After all, why should the government work so hard to keep people from smoking weed when China is manipulating its currency and Islamic State is burning people alive in cages?

Perhaps most importantly, however, legalization makes sense fiscally. If there’s one issue Trump has been consistent on since he launched his presidential bid, it’s economic protectionism. Today, the American marijuana industry employs 100,000 to 150,000 people nationally. Marijuana spending is estimated at $30 billion annually, according to market-research firm the Cowen Group, but only a fifth of that is spent on legal products. If legalized, the market is expected to grow to $50 billion annually by 2026.

For the same reasons Trump believes we should be buying cars and air-conditioners manufactured domestically, it follows that he should be making every effort to ensure America dominates the global marijuana industry. Americans should be smoking American weed. This requires the government’s ban be lifted so the market can flourish.

Legalization should be particularly attractive to Trump and his base, considering the main competitors to America’s pot industry are the very criminals and gangs he likes to target in his speeches. In 2008, nearly two-thirds of the pot consumed in the United States came from Mexico, according to the Rand Corp. Since then, Mexican drug cartels have had to compete with American pot farms operating in an increasingly legal landscape that produces a higher quality product and drives profits down.

Today, consumption of Mexican weed in America has been decreased to less than a third, according to an estimate by Alejandro Hope, a Mexico City based security and drug analyst. Full American legalization may put the nail in the coffin on cartel profits from weed. Trump knew this in 1990 when he said, “We're losing badly the war on drugs. You have to legalize drugs to win that war. You have to take the profit away from these drug czars."

Finally, legalizing marijuana would allow Trump to make good on his campaign promise to help “inner-cities.” Instead of paying lip service to urban communities and insulting them with rhetoric describing them as crime-ridden, Trump could actually help those communities by legalizing pot, and making sure no one else has their life ruined because they got caught smoking a joint....

The policy benefits of legalization are many, and Trump shouldn’t wait to capitalize on the political opportunity. Legalization would be a deal that allows the government to save on the costs of enforcing prohibition and fighting a failing drug war. Pot would become safer as it becomes controlled and regulated, and the government could do a better job at youth drug prevention. Taxation from legal pot sales will provide state and local governments a healthy revenue stream, at the expense of our trade competitors. Most importantly, it would shore up support for his presidency from demographics he needs, while growing the economy and jobs.

That would be a lot of winning.

February 3, 2017 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)

New Textbook on Marijuana Law, Policy, and Authority

I’m happy to announce that my first-of-its-kind textbook on Marijuana Law, Policy, and Authority will soon be published by Aspen. It will be out in April (in e form) and May (in print). The teacher’s manual and a companion website will be available soon thereafter. Many thanks to Doug and others who have provided helpful feedback on this book over the last 2.5 years!

The book covers a lot of ground, befitting a field that implicates so many different areas of law. The first chapter of the book is now available on SSRN. That chapter provides more details about the book’s coverage and approach, and it also explains why this is such an interesting and worthwhile area of law to study – and not just for those who are interested in practicing in this burgeoning field.

Not coincidentally, I will be posting more this month (both here and at Prawfsblawg) on topics drawn from the book. My first post at Prawfsblawg briefly laid out the case for teaching and writing about marijuana law. Even though most people who read this blog are already sold on the subject, I’ll copy the relevant passage here:

“For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.

Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.

All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.”

In the coming weeks, I will blog about some of the questions noted above. In the meantime, if you are interested in teaching a course or a unit on any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.

February 3, 2017 in Assembled readings on specific topics, Books, Business laws and regulatory issues, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, State court rulings, Who decides | Permalink | Comments (2)

Tuesday, January 31, 2017

Reading green tea leaves on Judge Gorsuch and marijuana law

A couple of marijuana reform supporters already have a couple of commentaries flagging some decisions of new SCOTUS nominee Neil Gorsuch concerning marijuana:

From Tom Angell here, "Trump's Supreme Court Pick On Marijuana"

From Heavy.com here, "Neil Gorsuch & Marijuana: What Are His Views on Legalization?"

I am not sure there is a whole lot here to get assess, but I surmise from other opinions dealing with other issues that Judge Gorsuch is a fan of federalism and limits on federal powers.  That philosophy should generally bode well for marijuana reformers at this moment in time, and  I do think it likely that some marijuana law and reform issues are likely to end up before the Supreme Court in the decades to come. 

January 31, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)

Thursday, January 19, 2017

"Trump’s marijuana options"

The title of this post is the headline of this effective Hill commentary authored by Beau Kilmer, who is co-director of the RAND Drug Policy Research Center.  Here is the heart of the discussion:

The Obama administration has largely taken a hands-off approach, releasing a 2013 Department of Justice memo indicating that federal prosecutors and law enforcement agents should not use scarce resources to shut down state-legal operations in places that have “implemented strong and effective regulatory and enforcement systems.” To the Obama administration’s credit, the president did recently note marijuana legalization is “a debate that is now ripe” and the director of the National Institute on Drug Abuse called for more research to determine which “policy structures — beyond simply prohibition or free market — are most likely to keep harms to a minimum.”

No one knows what the Trump administration will do about marijuana, and Sen. Jeff Sessions’ confirmation hearing for attorney general didn’t provide much insight. Will it follow Obama’s lead? Trudeau’s? Do something entirely different? The new administration will have at least six options.

Shut it down. The administration could crack down on marijuana businesses in states that have legalized for nonmedical purposes. It would be easy for DOJ to send out “cease and desist” letters to these companies and their landlords. However, there could be serious political costs with states arguing these federal actions would put people out of jobs, increase income for criminals and take tax dollars away from good causes.

Shape the markets. The DOJ could use its discretion to shape what the market looks like in the legalization states. Want to stop stores from selling and promoting high-potency products for nonmedical purposes? A letter could probably do the trick here, too. If not, seizing the products in a store or two could have a chilling effect.

Maintain the status quo. Doing nothing—and sticking with Obama’s approach—is always an option. This would likely lead more states to follow Colorado and Washington and grant licenses to marijuana companies incentivized to maximize profits instead of protecting public health.

Reclassify marijuana. The new administration could support rescheduling marijuana. Currently, marijuana is a Schedule I drug—the most restrictive category—because the Food and Drug Administration remains unconvinced that the whole plant material has an accepted medical use. Rescheduling would make it easier to research the health consequences—benefits and harms—and could have implications for marijuana businesses.

Address federal-state conflicts. The new administration could maintain federal prohibition while supporting legislation or other solutions to address problems caused by the federal-state conflict. For example, banks that accept money from state-legal marijuana businesses are committing federal offenses. The inability to bank like other entities creates challenges for thousands of companies. The administration could also support the creation of a policy waiver system that would make it easier and less risky for states to legally experiment with alternatives to the profit-maximization model, such as the state monopoly approach. (That said, the risk of federal interference hasn’t stopped tiny North Bonneville in southern Washington state from creating a government-owned and -operated store).

Legalize it. The administration could support legislation to legalize and regulate marijuana at the federal level. This would address the federal-state conflicts and allow the feds to impose a national tax or minimum price. It would also be a blatant violation of the international drug conventions that the United States has signed along with almost every other nation on earth (including Canada).

These six options are not all mutually exclusive and each comes with tradeoffs. Importantly, they are all compatible with a federal approach that encourages and supports discussions about marijuana prohibition and its alternatives. But if the feds don’t act, it is possible the United States could end up with a much looser and more commercial marijuana model than if the federal government legalized or created a waiver system.

January 19, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, January 10, 2017

AG-nominee Jeff Sessions deftly avoids saying too much about aggressively enforcing federal marijuana laws

170110105957-jeff-sessions-4-exlarge-169As expected, during today's confirmation hearing for the position of US Attorney General, Jeff Sessions was asked a few questions about whether and how he would enforce federal marijuana prohibitions.  These three press reports on the exchange provide slightly different spins on what Senators Sessions said and did not say:

From The Huffington Post here, "Jeff Sessions Offers No Straight Answers On How He’ll Handle Legal Marijuana"

From Reason here, "Sessions Offers Unclear, Useless Answers on Marijuana During Confirmation Hearing"

From the Washington Post here, "Sessions on enforcing federal marijuana laws: ‘It won’t be an easy decision’"

Though I suspect some marijuana reform activists were hoping to hear Sessions say he would fully respect and order DOJ officials to always defer to state marijuana reforms, such a statement would be in some ways tantamount to saying he would not fully respect federal marijuana prohibition (which is still the law of the land). Consequently, I was not surprised and in many ways encouraged by how Senator Sessions handled these issues. These passages from the HuffPo piece spotlight what I consider the biggest highlight, along with one marijuana advocate's takeaway:

“I won’t commit to never enforcing federal law,” said Sessions, responding to a question about whether he’d use federal resources to prosecute people using marijuana in accordance with their state laws. “But absolutely it’s a problem of resources for the federal government.”

Sessions went on to say that federal guidelines on marijuana enforcement crafted under Attorneys General Eric Holder and Loretta Lynch had been “truly valuable” in determining how to navigate inconsistencies between federal law ― under which marijuana is illegal ― and state laws that have loosened restrictions on the plant. Sessions also noted that if Congress wanted to clear up this confusion, it could pass a law adjusting the legal status of marijuana. Until then, however, he vowed to do his job “in a just and fair way” while judging how to approach marijuana going forward.

“It is not so much the attorney general’s job to decide what laws to enforce,” Sessions said. “We should do our job and enforce laws effectively as we are able.”

Marijuana advocates met Sessions’ stance with guarded optimism, though they cautioned that he had not ruled out the possibility of more aggressive action against legal marijuana states and users. “It’s a good sign that Sen. Sessions seemed open to keeping the Obama guidelines, if maybe with a little stricter enforcement of their restrictions,” said Tom Angell, chairman of Marijuana Majority, a drug policy reform group. “The truth is, his answer was skillfully evasive, and I hope other senators continue to press for more clarity on how he would approach the growing numbers of states enacting new marijuana laws.”

January 10, 2017 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Wednesday, January 4, 2017

"Free marijuana to be handed out Inauguration Day"

The title of this post is the headline of this notable new article that reports that the "DC Cannabis Coalition says it plans to hand out thousands of joints of marijuana on Inauguration Day — for free — to urge federal legalization of pot." Here is more:

The group plans to start handing out joints at 8 a.m. Jan. 20 on the west side of Dupont Circle in the nation's capital, where recreational marijuana is legal.  Then, marchers will walk to the National Mall where the real protest will begin.

"The main message is it’s time to legalize cannabis at the federal level," said Adam Eidinger, the founder of DCMJ, a group of D.C. residents who introduced and helped get Initiative 71 passed in the District.  Initiative 71 made it legal to possess 2 ounces or less or marijuana, to grow it, and to give it away, but it is not legal to sell it.

Eidinger is worried, though, that all this progress will be lost with the incoming administration, specifically, with President-elect Donald Trump's pick for attorney general, Jeff Sessions. "We are looking at a guy who as recently as April said that they are going to enforce federal law on marijuana all over the country. He said marijuana is dangerous," Eidinger said.

The great marijuana giveaway is legal, as long as it's done on D.C. land. "We don't want any money exchanged whatsoever.  This is really a gift for people who come to Washington, D.C.," he said.

There will 4,200 gifts, to be exact.  Then, at 4 minutes and 20 seconds into Trump's speech (420 is the internationally known code for weed), protesters are encouraged to light up.  That part, is most definitely illegal.  "We are going to tell them that if they smoke on federal property, they are risking arrest. But, that's a form of civil disobedience," said Eidinger. "I think it's a good protest. If someone wants to do it, they are risking arrest, but it's a protest and you know what, the National Mall is a place for protest."

Eidinger said this is not an anti-Trump event, or even an attempt at disrupting the ceremony. Everyone is welcome....  Eidinger said the DC Cannabis Coalition is hopeful the new administration will not be a problem, but they are preparing for the worst.

January 4, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, December 11, 2016

Veterans group gets attention when urging Trump team to seek to reschedule marijuana

Tom Angell has this interesting report, headlined "Powerful Veterans Group Pushes Trump On Marijuana Rescheduling," on an interesting discussion of marijuana reform among conservative-leaning folks. Here are the highlights:

The nation’s largest military veterans organization is pushing President-elect Donald Trump to reschedule marijuana after he takes office early next year. Top officials from the American Legion, which passed a resolution endorsing the reclassification of cannabis under federal law earlier this year, sat down with Trump’s transition team last week to discuss key priorities for the more than 2 million military veterans the organization represents, including marijuana policy reform.

The group “initiated a call-to-action on fairly new Legion priorities – support of research related to the impacts of medical marijuana and the Drug Enforcement Administration’s reclassification of cannabis from a Schedule I drug to Schedule III,” according to a summary of the meeting on the American Legion’s website. “Reclassification of the drug would allow easier access to pure strains of the substance to cultivate quantifiable research and statistics regarding marijuana’s medical benefits.”

Louis Celli, national director of the Legion’s veterans affairs and rehabilitation division, told Marijuana.com that the Trump officials at the meeting were somewhat guarded in giving feedback on specific issues during the listening session, but that when cannabis’s potential to help heal military veterans war wounds came up, “there was an immediate change in the room.”

“All shuffling stopped, people stopped looking down at their notes, and instantly all eyes were on [Legion Executive Director] Verna Jones and everyone was transfixed and intently hanging on her every word,” Celli said. “I can’t speak for how the transition team felt, but there seemed to be a small shock that snapped the room to attention. No read on how the information was received, but I think they were a little caught off guard and didn’t expect such a progressive statement from such a traditional and conservative organization.”

There were also representatives of more than 30 other veterans service organizations at the meeting....

Moving marijuana out of Schedule I — or, removing it from the CSA altogether, like alcohol and tobacco — would have a number of effects. Reclassification to Schedule III or lower, as the American Legion is pushing for, would protect federal employees who use marijuana from a Reagan-era executive order that defines illegal drugs as Schedule I or II substances.

Additionally, only drugs under Schedules I and II are affected by the tax provision known as “280E,” which disallows state-legal businesses from deducting normal operational expenses from their federal taxes.

Because current laws and regulations prevent the Department of Health and Human Services and the Office of National Drug Control Policy from fairly evaluating Schedule I drugs, reclassification would allow the government to examine and communicate about marijuana in a way that prioritizes science instead of an outdated drug war mindset....

But rescheduling alone would not remove the criminal penalties that still put people abiding by state marijuana laws at risk of federal prosecution and prison sentences. Other statutes would have to be amended to accomplish that.

December 11, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"It’s Time to Let Mary Jane Graduate: Reclassify Marijuana"

The title of this post is the headline of this notable new New York Observer commentary authored by Faisal Ansari. The fact that this piece comes from the Observer is one reason it is notable, as the publisher of the Observer is Jared Kushner, son-in-law of Prez Elect Donald Trump. Here is how the piece begins:

Back in the 1970s, the federal government labeled marijuana as the devil’s lettuce, giving it a Schedule 1 classification. Since then, public perception regarding the plant has shifted drastically — but the government has continued to cling to its archaic stance.

In fact, just a few months ago, the Drug Enforcement Agency once again refused to reclassify marijuana, referring to Health and Human Service reports that claimed it has a high potential for abuse and no accepted medical use.

But those reports stem from the fact that research into marijuana’s medicinal properties has been hindered by politics for decades. Thanks to its strict classification, federal agencies have not been terribly eager to fund or support scientific studies that could potentially debunk many misconceptions that plague the plant.

Placing marijuana in the same category as drugs like ecstasy and heroin isn’t just a bummer for stereotypical “stoners”; it poses serious problems for millions of people who are in dire need of safe, natural, more affordable forms of medicine.

There’s a light at the end of the tunnel, though. Following our recent election, the number of states that grant citizens access to medical marijuana (MMJ) has grown to 26, and a grand total of eight states have now legalized cannabis for recreational use. An all-time-high 61 percent of Americans support marijuana legalization — and soon enough, the government will have no choice but to reschedule it to a lower category.

Currently, those who live in non-MMJ-friendly states are forced to uproot their lives if they want to seek natural medical relief. And, even if they move to a different state, there’s no guarantee they can easily access MMJ. Insurance companies cannot cover a federally restricted substance, so doctor visits, exams, and other diagnostic services must be paid for out of pocket. Not everyone can afford that. In fact, some patients consider MMJ because they already can’t afford pharmaceutical drugs.

Reclassifying marijuana won’t just revolutionize the healthcare industry; it will also positively affect the overall financial state of the country. Though only available in a small handful of states, legalized marijuana generated $4.6 billion in sales in 2014 and $5.4 billion in 2015. The tax revenue from these sales is being leveraged in a variety of productive ways — from improving local infrastructure to providing services to those in need. For example, Colorado is allocating $3 million from marijuana taxes to feed and house the homeless.

December 11, 2016 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, December 8, 2016

Trump nominates anti-legalization retired general to run DHS

Despite uncertainty as to his personal views on marijuana, President-elect Donald Trump hasn't shied away from nominating people to his administration who are openly hostile to it. Trump recently nominated Sen. Jeff Sessions (R-AL) to be the next attorney general and Rep. Tom Price (R-GA) as the next director of the Department of Health and Human Services, both of whom have been strong critics of legalization. Yesterday, The Washington Post reported that Trump will soon announce retired Marine General John F. Kelly as the next director of the Department of Homeland Security. While his views on marijuana policy appear slightly more nuanced than those of Session or Price, Kelly is still hostile to marijuana legalization. The Washington Post's Christopher Ingraham writes:

Kelly served as the head of the U.S. Southern Command, a posting that gave him oversight ofU.S. security operations for Central America, the Caribbean and the entirety of South America. Trump settled on Kelly in part for his Southwest border expertise, according to people familiarwith the deliberations.

 

In that role, Kelly grappled with issues relating to the international illicit drug trade and the flow of narcotics, including heroin and cocaine, from countries in the Southern Hemisphere to markets in the United States...

 

Kelly is, however, critical of marijuana legalization. He calls the plant a gateway to harder drugs (this notion is disputed by many drug abuse researchers and the National Institute on Drug Abuse). He does support the use of medical marijuana, however: “I'm not a doctor,” he told the Military Times, “but I'm told it has a medical use. So whether it's veterans or anyone else, if it helps those people, then fine. Medicine is medicine.”

 

Kelly's nomination would be the third Trump Cabinet pick who is an outspoken critic of marijuana legalization. Attorney general nominee Sen. Jeff Sessions (R-Ala.) has been harshly critical of legalization efforts, arguing that “good people don't smoke marijuana.” Rep. Tom Price (R-Ga.), Trump's pick to run the Department of Health and Human Services, has been one of the most reliably anti-marijuana members of Congress in recent years, voting against even modest policy changes.

 

As DHS secretary, Kelly wouldn't have as direct an effect on federal drug policy as the attorney general or the Health and Human Services secretary. But if confirmed, he would be one more Cabinet-level skeptic of marijuana legalization in an era of increasing marijuana legalization at the state level.

December 8, 2016 in Current Affairs, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

"7 Reasons President Trump Is Unlikely to Fight Legal Marijuana"

America_We_DeserveThe title of this post is the headline of this effective new Time magazine article.  I recommend the piece in full, and here are some key excerpts and major headings:

With Donald Trump nominating Cabinet members who have spoken out against legal marijuana, some are arguing that the war on drugs may make a comeback. But while there’s reason for anxiety among those selling recreational marijuana legally in states like Colorado and Washington, an all-out war remains unlikely.

Experts say that trying to undo legalization at this point would come with serious economic and political hurdles. “It’s certainly come so far,” says Sam Kamin, a marijuana law expert at the University of Denver, “that it can’t be undone without a heavy cost.” Others are even more skeptical. Says Mike Vitiello, a marijuana law expert at the University of the Pacific, “It’s kind of like illegal immigration: You can’t build a wall high enough.”

Here are seven reasons that it would be hard to stop what the states have started.

Waging a war on pot would go against the will of many voters.

“It would be a very blatant finger to the voters,” says the Drug Policy Alliance’s Amanda Reiman. In November, voters in eight states cast their ballots for some form of marijuana legalization. That means that medical marijuana is now legal in 28 states and recreational marijuana is legal in eight, including the nation’s most populous: California. With that powerhouse on board, a total of about one quarter of the population lives in a place where voters have decided that adults should be able to consume cannabis much the same way they consume alcohol. And all but six other states have legalized a non-psychoactive form of cannabis known as CBD, which people use to treat conditions like juvenile epilepsy.

Public opinion on marijuana is going in the opposite direction. ...

Trump himself has said he supports medical marijuana and that states should handle the question of whether to legalize. ...

It does not seem high on his list of priorities. ...

Waging a war costs money. ...

There’s a lot of money in marijuana these days and the prospect of much more in the future.

If legal marijuana markets didn’t exist tomorrow, that would mean the shuttering of hundreds of small businesses and the loss of thousands of jobs. It would buoy the black market. And it would also make for a lot of unhappy investors. The market for legal marijuana in America is already worth an estimated $7 billion and, according to market research firm ArcView, it will be worth more than $20 billion by 2020. While many bigwig venture capitalists and corporations are still wary of writing checks because of prohibition, others are proving eager to cash in on the “green rush.” Among them is even a member of Trump’s transition team, Silicon Valley billionaire Peter Thiel. “There’s a huge amount of capital formation,” says Vitiello. “There are literally billions of dollars of investment in these gray market establishments.”

The extent of federal government’s authority over these matters is unclear. 

December 8, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, December 5, 2016

Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive

Lead_960The title of this post is my (foolish?) reaction to this notable new Politico magazine article headlined "Jeff Sessions’ Coming War on Legal Marijuana: There’s little to stop the attorney general nominee from ignoring the will of millions of pro-pot voters." Here are excerpts from the start of the article which I follow with a (too brief) explanation for my blunt "bring it" bravado:

By nominating Senator Jefferson Beauregard Sessions III for attorney general, President-elect Donald J. Trump is about to put into the nation’s top law enforcement job a man with a long and antagonistic attitude toward marijuana. As a U.S. Attorney in Alabama in the 1980s, Sessions said he thought the KKK "were OK until I found out they smoked pot.” In April, he said, “Good people don't smoke marijuana,” and that it was a "very real danger" that is “not the kind of thing that ought to be legalized.” Sessions, who turns 70 on Christmas Eve, has called marijuana reform a "tragic mistake" and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing a the federal prohibition that President Obama has called “untenable over the long term.”  In a floor speech earlier this year, Senator Sessions said: "You can’t have the President of the United States of America talking about marijuana like it is no different than taking a drink… It is different….It is already causing a disturbance in the states that have made it legal.”

Sessions has not shared his plans on marijuana enforcement, but if he chooses, he will be able to act decisively and quickly — more so perhaps than with any other of his top agenda items such as re-doubling efforts to combat illegal immigration and relaxing oversight of local police forces and federal civil rights laws. With little more than the stroke of his own pen, the new attorney general will be able to arrest growers, retailers and users, defying the will of more than half the nation’s voters, including those in his own state who approved the use of CBD. Aggressive enforcement could cause chaos in a $6.7 billion industry that is already attracting major investment from Wall Street hedge funds and expected to hit $21.8 billion by 2020.

And so far, Congress has shown no interest in trying to stop the Sessions nomination, at least on this issue. Even members who are in favor of protecting states from federal interference on the marijuana issue have said they support Sessions’ confirmation as attorney general: “I strongly support Jeff Sessions as Attorney General,” said Representative Tom McClintock, Republican from California. “He is a strict constitutionalist who believes in the rule of law. I would expect that he will respect the prerogative of individual states to determine their own laws involving strictly intra-state commerce.”

There are dozens of reasons I think it would be quite foolish as a matter of constitutional law and sound federal policing priorities for future Attorney General Jeff Sessions to start his tenure by using broad federal police powers to criminally prosecute tens of thousands of players in a growing recreational marijuana industry.  This industry is already well-established and producing thousands of jobs and tens of millions in tax revenues in Colorado, Oregon and Washington; it is now gearing up for growth in Alaska, California, Massachusetts and Nevada and maybe Maine.

In the most simple of terms, it would be foolish for the Trump/Sessions Administration to try to "Make America Great Again" via tough federal pot prohibition enforcement because it would show to all who care to pay attention that the GOP's purported affinity for personal freedoms, free markets, limited government and states' rights is a huge bunch of hooey.  But I genuinely believe that most younger GOP Senators — e.g., folks like Ted Cruz, my wish pick for AG, Mike Lee, Rand Paul, Ben Sasse, Tim Scott— have always voiced a genuine commitment to personal freedoms, free markets, limited government and states' rights.  Consequently, I do not think these important GOP voices are going to be quick to bless any efforts by future AG Jefferson Beauregard Sessions III to bring back an era of national federal Prohibition enforcement by executive fiat.

Moreover, and completely missing from the facile analysis in this superficial Politico article, even if future AG Jeff Sessions were eager to bring back an era of national federal Prohibition enforcement by executive fiat for the emerging recreational marijuana industry, there will still be the bigger and stronger and much more consequential medical marijuana industry chugging along — especially in so many swing/red states that were critical to the election of Donald J. Trump circa 2016.  I am thinking here specifically of now-red states like Arizona and Florida and Michigan and Ohio and Pennsylvania.  Those now-red states alone add up to nearly 100 electoral votes that a whole bunch of Dems would love to win back in 2018 and 2020; and they are all states that, I think, could easily go back into the Dem column if/when establishment Dems finally figure out that medical marijuana reform in a winning issue worth promoting forcefully.  (I have blogged here an explanation for my claim in a post at my other blog that Voter math suggests a possible Hillary landslide IF she had championed marijuana reform.)

Importantly, in this post I have only outlined some obvious political/policy reasons for why I think it would be foolish (and ultimately unlikely) for future AG Jefferson Beauregard Sessions III to bring back an era of national federal pot Prohibition enforcement by executive fiat.  In a future post, assuming readers are interested, I can explain all the reasons I think the other two branches of the federal government — Congress and the federal judiciary — can and would and should find an array of means to "stop the attorney general nominee from ignoring the will of millions of pro-pot voters."  Given that Congress and federal judges over the last eight years have done a whole lot to preclude the Obama Administration from doing too much by executive fiat,  everyone concerned about criminal justice and marijuana policy in the Trumpian future much keep in mind that the Framers gave us a wonderful federal system of check-and-balances that has been pretty effective at keeping the big bad federal government from doing too many stupid things that are obviously against the considered will of the people.

Just sayin'

Cross-posted at Marijuana Law, Policy, and Reform

December 5, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, December 1, 2016

"California backers of legalized marijuana fear possible battle with attorney general pick Jeff Sessions"

Today, The Los Angeles Times reports on how marijuana legalization advocates are preparing for potential political and legal battles with the presumptive next attorney general, Sen. Jeff Sessions (R-AL). The Times's Patrick McGreevy writes:

Marijuana industry leaders in [California] and around the U.S. have launched an opposition campaign to the Senate confirmation of the Republican senator from Alabama and are appealing to the Trump camp to make sure the president-elect’s policies are consistent with his campaign comments that he favors allowing states to decide how to enforce marijuana laws...

 

Sessions said at a legislative hearing in April that “good people don’t smoke marijuana,” a drug that he said is “dangerous.” He went on to say, “We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized.”... 

 

 

Marijuana remains an illegal drug under federal law, and industry leaders and some elected officials fear Sessions might repeal a policy directive from the Department of Justice that has prevented enforcement in the states, or take California to court and argue that federal law preempts state legalization measures.

 

If that happens, there will be a fight, supporters say.

 

"California voters supported legalization by a historic and overwhelming margin, and their elected leaders are not going to stand aside and allow the senator from Alabama to turn back California’s clock,” said Lt. Gov. Gavin Newsom, a leading proponent of Proposition 64...

 

Opponents of Proposition 64 are encouraging Sessions to reverse the federal policy that has allowed states to legalize and regulate recreational use without federal enforcement.

 

“The issue is really as simple as stating that federal law is, in fact, the law of the land and will be enforced across the entire nation,” said Kevin Sabet, president of the opposition group Smart Approaches to Marijuana.

 

Sabet’s group has urged Sessions to send a letter to the governors of states that have legalized pot use and notify them that issuing licenses for marijuana sales is a violation of the Controlled Substances Act. Sabet suggested the states be given six months to roll back their regulations before enforcement begins...

 

However, supporters of Proposition 64 said they believe the state would be obliged to defend the measure if it is challenged in court.

 

“We would expect a very, very strong pushback from the state, because the reality is it’s a public safety issue,” said Nate Bradley, executive director of the California Cannabis Industry Assn. “They have decriminalized a product, so if you don’t allow any sort of regulation in place for people to access that product, the underground market is only going to grow.”

 

Bob Hoban, an attorney and marijuana industry consultant, said Trump’s selection of Sessions is “alarming,” but he is hopeful that Trump will keep the federal government’s hands off the states.

 

A series of court challenges to Colorado’s law have been dismissed, and the Supreme Court in March declined to hear a lawsuit by neighboring states Oklahoma and Nebraska, Hoban said. The two states argued that Colorado’s legalization regulations are unconstitutional and have a negative impact on them because marijuana is flowing across state lines.

 

Hoban also said it is “a very positive sign” that Trump’s transition team includes PayPal co-founder Peter Thiel, whose investment firm has a $75-million stake in the marijuana industry.

 

Even so, Assemblyman Rob Bonta (D-Oakland), a leading legislative proponent of decriminalization, said California officials are “preparing to dig in” to defend the state’s  values if there is a federal challenge.

 

Among its options, the state could mount a defense of its marijuana laws in court if the federal government challenges Propositions 64 and 215, the 1996 medical marijuana initiative, experts say.

 

California can also wield political clout given that the state has the largest delegation in Congress. That power was exercised when Reps. Dana Rohrabacher (R-Costa Mesa) and Sam Farr (D-Carmel) coauthored a rider to the federal budget that has for the last two years prohibited federal funds from being used to prosecute medical marijuana businesses that are in compliance with state laws...

December 1, 2016 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)