The recent election saw California and three other states join Oregon, Washington, Colorado and Alaska in legalizing recreational use of marijuana. Four more states voted for medical cannabis, as well. But the burgeoning cannabis industry has relied on an Obama Administration policy of tolerating state laws that regulate a drug that’s still federally illegal. With a new administration talking over in Washington D.C., what does this mean for legal pot?
While buying weed in the Northwest isn’t quite as simple as walking into your corner 7-Eleven and picking up a six pack, it’s pretty easy. These now-legal transactions happen tens of thousands of times a day in Oregon, Washington, Colorado and Alaska. What’s allowed this to happen, since marijuana remains illegal under federal law, is a 2013 policy memo by then-Deputy Attorney General James Cole. The so-called Cole Memo says that if states make effective efforts to keep pot away from kids, prevent driving while high and address other concerns, the feds will look the other way.
Will a Trump Administration continue that policy? At a rally in Nevada a year ago, candidate Trump weighed in on the topic.
“I think medical should happen, don’t we agree? I mean, I think so. And then I really think you should leave it up to the states, it should be a state situation,” he said.
But Trump has expressed less supportive opinions on other occasions and his nominee for attorney general – Alabama Senator Jeff Sessions – has very firm ideas of his own.
“This drug is dangerous, you cannot play with it, it’s not funny, it’s not something to laugh about. And trying to send that message with clarity that good people don’t smoke marijuana,” said Sessions at a Senate hearing last April.
John Hudak says it’s hard to say where the Trump Administration will come down on this issue. Hudak is a senior fellow at the D-C-based Brookings Institution who’s made a study of cannabis policy.
“There is reason for us to believe that either outcome; either a pro-states’ rights outcome or a pro-prohibition outcome, could happen,” he said.
Hudak points out that the legal foundation on which the marijuana industry rests is pretty precarious.
“The Cole memos can be rescinded by the stroke of the pen of the attorney general,” he says.
But Troy Dayton isn’t too worried. Dayton is CEO of the Arcview Group, a San Francisco-based investment and market research firm that focuses on cannabis. He acknowledges that if Sessions is appointed and if Trump gives him scope to set his own policy it would be “devastating to the cannabis industry.” But Dayton remains bullish on the industry’s future. He points to the growing success of legalization measures and to polls showing more than 60 percent of Americans support legal pot.
There is more political cost to going against the grain here, than going with the grain,” he says.
He thinks Trump is unlikely to spend his political capital trying to put the marijuana genie back in the bottle.
Many, including Henry Wykowski agree with that sentiment. He is a prominent San Francisco lawyer who’s represented many cannabis businesses during years of legal battles with the feds.
“The more people that know how to grow it and appreciate the benefits of using it, the harder and harder it’s going to be to stop,” he said.
Wykowski notes that since 2014, Congress has passed a budget rider that bars the Justice Department from using federal funds to interfere with state medical marijuana laws. And in 2015, a federal court slapped down a Justice Department attempt to circumvent the measure. Wykowski thinks it’s likely Congress will extend that protection to states with recreational use laws, as well.
“Why would anybody want to deprive the states of the ability to regulate and tax cannabis and open up that market back to the illegal cartels?” he asks.
About three in five Americans now live in a state with some form of legal cannabis. Analysts say the industry is worth nearly $7 billion this year. And, as the new states – including California – come on line, that value is projected to approach $22 billion dollars by 2020.