Cannabis Strategy Under Trump: Here Are Four Ways to Play It

In the weeks after the election of Donald Trump, cannabis advocates and industry players have struggled to find the path forward. It’s tough to know what to do when nobody knows exactly what the President-elect thinks about legalization. It’s an issue that puts two dominant themes–the historic conservative demonization of cannabis, and the Republican Party’s embrace of state’s rights–in direct conflict. Adding to the confusion: When it comes to cannabis, old red-blue orthodoxies have broken down. Many conservative Republicans are in favor of legalization. Plenty of liberal Democrats oppose it. To move the conversation forward, Leafly has gathered four of the most compelling recent pieces on the subject, by Brave New Weed author Joe Dolce, Cornell law professor Michael Dorf, Drug Policy Alliance official Bill Piper, and the Orange County Register editorial board.

Joe Dolce:
Don’t kid yourself. The cannabis industry is not too big to fail.

I spoke earlier this month at the ArcView Summit, a gathering of the wealthiest and brightest minds in the cannabis industry. These are the investors and entrepreneurs who came into the industry early and are reaping profits from it today. I went into the gig feeling dubious about the industry’s future—given the election of Donald Trump—but it turned out that I was one of the lone doubters. The mood of the crowd, which was not filled with Trump supporters, was positively giddy.

The rationale of their optimism went something like this.

The business of legal marijuana, currently valued at $8 billion and forecast to hit $18 billion by 2020, is too big to succumb to political suppression. Four of the states that voted for Trump — Arkansas, Florida, Montana and North Dakota — also voted to legalize medical cannabis. In the words of ArcView CEO Troy Dayton, Weed is the only topic that red and blue Americans agree on. The citizens are convinced of its medical and recreational qualities. Any attempt to constrain the rollout would be a wildly unpopular, if not reckless, gambit.

The cannabis industry has been built not on federal law, but on a temporary dispensation.

Several industry insiders also assured me that Trump is far too focused on states’ rights to interfere with the cannabis trade. That puzzled me. How could they be so certain? Trump has almost no stated positions; he’s beyond the control of any party or institution. As criminal defense attorney and cannabis advocate Joseph Bondy said:“There’s a lot of propaganda and willful blindness about a number of the things on the marijuana horizon. You usually find it paired with uninformed avarice.”

The ArcView attendees I spoke to struck me as neither blind nor uninformed nor unusually greedy. But is the promise of cannabis so intoxicating that it’s leading them to believe the industry is too big to be stopped?

History shows that it’s wise to take seriously what authoritarian personalities say and do. The certainty that Steve Bannon, Jeff Sessions, and other stalwarts of the radical Republican right will be in positions of power should give no one solace. These are law-and-order zealots who might find it convenient to restart the war on cannabis as a signal of their seriousness. This past April, Sessions said, “We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.” His thinking is right out of the Nancy Reagan’s playbook: Government leaders should be fostering “knowledge that this drug is dangerous, you cannot play with it, it is not funny, it’s not something to laugh about . . . and to send that message with clarity that good people don’t smoke marijuana.”

It’s important to keep in mind that the cannabis industry has been built not on federal law, but on a temporary dispensation—the Cole memo—granted by the Obama administration.

Small and medium size companies are up and running. They have loans, employees, and benefits programs, and all the other obligations of real businesses. What they don’t have are federal laws that protect their investments. Cannabis products don’t even enjoy copyright or trademark protection. That makes it easier for a hostile government to shut the whole thing down.

There’s a less aggressive but equally effective way a law-and-order administration could tame the current momentum: by rescheduling cannabis. Cannabis is currently a Schedule 1 “narcotic,” which is absurd. Advocates want it descheduled and put alongside alcohol and tobacco, where it belongs. But if Congress decided to move it into Schedule 2, 3, 4 or 5, it would essentially be regulated as a pharmaceutical, and require a doctor’s prescription.

If that were to occur, most of the adult use market and the dispensary system could vaporize. If we lose the dispensary—which I believe is one of the most radical institutions in America — it’s just no fun. I don’t want to buy my weed at Walgreens.

I’m not predicting this will happen. But it could. Cannabis has always been dangerously susceptible to shifting political winds. And I don’t know anyone who doesn’t think that today’s winds could easily turn into blustery gales.

Former Details magazine editor-in-chief Joe Dolce is a Leafly contributor and the author of Brave New Weed: Adventures into the New World of Cannabis.

Michael Dorf:
A federal crackdown would return the market to criminal gangs.

Whether Jeff Sessions actually would attempt a federal crackdown on state-legal cannabis partly depends on how much authority President-elect Trump delegates to him. It’s easy to imagine that Trump would not be a “hands-on” president in this regard, given his lack of prior law enforcement experience and the press of other business. Trump’s own views on the matter are unclear. Trump appeared to favor legalization of medical marijuana and a policy of federal deference to state law, but he did not campaign on marijuana-related issues and even if he had, there is reason to question how or whether what he said as a candidate would translate into policy.

There are also political considerations that might make the Trump administration reluctant to reverse the Obama marijuana policy. To be sure, if you superimpose the electoral map on the marijuana map, you find that there is a fairly strong correlation between Democratic voting in the 2016 presidential election and degree of marijuana legalization. The states Clinton won most handily tend to have the most liberal policy (legal recreational use) while the states that Trump won most handily tend to have the strictest policy. That might lead one to think that Trump wouldn’t suffer politically from a marijuana crackdown.

However, purple states and even some quite red states (e.g., Alaska, Montana, Arkansas, North Dakota) have legal marijuana to one degree or another, and there are obviously a fair number of people who voted for Trump and for legalizing recreational use. Moreover, even some Trump voters who oppose state legalization might resent federal intrusion on federalism grounds. A federal crackdown on marijuana would likely be quite unpopular. For that reason, it is possible to imagine Trump or his political people attempting to restrain Sessions.

A Sessions crackdown would return us to pre-legalization conditions, which would be the worst of all possible worlds.

Suppose they fail to do so. Suppose Sessions cracks down. What would the consequences be?

It’s not entirely clear, but my best guess is that a Sessions-led federal crackdown would be a great boon for drug gangs. Let me explain why.

The federal government lacks the resources to enforce federal marijuana prohibitions against small-time dealers, much less users, on anything like a systematic basis. Even in the days before states began legalizing medical or recreational marijuana, the Department of Justice (DOJ) and the Drug Enforcement Agency (DEA) focused on major distribution networks. Occasionally the Feds would participate in “federal days”–jointly making arrests with local authorities and prosecuting some of the arrestees in federal court. If the Sessions DOJ were able to conduct more federal days without the assistance of local law enforcement, however, such an approach would not pose a serious risk of apprehension and federal prosecution of typical marijuana users and street-level dealers, given the federal resource constraints.

To be at all effective, a federal crackdown would mostly have two targets. First, the federal government could sue state authorities to enjoin those aspects of state marijuana legalization regimes that do not merely fail to outlaw marijuana on state grounds but provide affirmative assistance to state-licensed growers and distributors in violating federal law. Second, the DEA could readily go after easy targets, such as the retail marijuana shops and state-approved growers operating in the open. After a few federal raids of such businesses, the state-legal open marijuana business would almost completely shut down, because the business would no longer be profitable.

But that wouldn’t make marijuana disappear from states in which it is legal. A Sessions crackdown would merely return those states to a pre-legalization condition, albeit with an important difference. Before legalization, such states often devoted substantial law enforcement resources to arresting low-level dealers. They no longer do, and given the likely resentment of a federal crackdown, state and local politics would mostly preclude returning to pre-legalization police action against marijuana.

Hence, the post-federal-crackdown landscape could well be the worst of all possible worlds: No one would offer regulated marijuana under the state’s regime, for fear of a federal raid; state and local governments would refuse to expend resources to combat illegal marijuana; and federal resources would be inadequate to police illegal marijuana in a way that substantially reduces supply. The net result would be to increase the power of drug gangs and their associated violence.

At that point, Trump and Sessions would likely invoke the increase in drug-gang crime they had created as a basis for a further crackdown on undocumented immigrants because “they’re bringing drugs. They’re bringing crime…”

I know. I whipped out that Mexican thing again. But it was relevant.

Michael Dorf is the Robert C. Stevens Professor of Law at Cornell University. His commentaries–including this one–appear several times a week on his blog, Dorf on Law.

Bill Piper:
We’ve got to play it smart under Trump. Here are four ways to do that. 

I began working, advocating and lobbying for federal-level drug policy reform in Washington, DC in the last year of Bill Clinton’s presidency. I’ve continued to do so ever since: I was a loyal soldier in the war against the War on Drugs through eight years of George W. Bush and then eight years of Barack Obama. But now, with the election of Donald Trump, it feels like the work during those three presidencies was just basic training—the real challenge is just beginning.

Like many people, I’m still trying to wrap my mind around the very idea of Donald Trump as president. But what’s certain is that drug policy reformers are going to have to play it smart in the new era, and I do have some initial thoughts.

First, we’re in uncharted territory. We have never had a president like this—so far removed from establishment norms, openly promoting white supremacy, believing in and promoting wacko conspiracy theories. Complicating matters, he doesn’t seem to have fixed positions, rarely gives specifics and contradicts himself often. No one knows for sure what exactly to expect, but we should assume the worst.

His administration, which looks set to be staffed by drug-war extremists, could go after state marijuana laws. Instead of just opposing sentencing reform, they could push for new mandatory minimums. They might demonize drugs and drug sellers to build support for mass deportations and a wall. Trump’s law-and-order rhetoric could fundamentally alter the political environment, nationally and locally.

We need to pace ourselves, choose our battles carefully, be strategic, and support each other.

Right now there is a bipartisan consensus in favor of reducing incarceration—that consensus is in danger. We could be set back decades if we’re not careful. We need to rethink a lot of what we’ve been planning and think about how we message. And it’s more important than ever that we support our allies in other movements and stand strong for racial justice. We need to re-learn how to play defense.

Second, I know few people on my side of the fence want to hear this, but the threats posed by Donald Trump and his people are threats we will be facing for four years, maybe eight. We will be fighting them for a long time, and we need to recognize and internalize that.

We need to pace ourselves, choose our battles carefully, be strategic, and perhaps most importantly, keep our morale up. We need to find ways of supporting each other.

Third, we got to be crafty. We need to be careful not to box the Trump administration into making bad decisions, and we should try to box them into making at least semi-good decisions.

As one example, Trump said during the campaign that he would protect states’ rights on marijuana and that he supports medical marijuana. The more we repeat that and hold him to that, the better.

Trump has a yuge ego, his policy positions are fluid, he will want to get re-elected and he is easily influenced by media. We should exploit his weaknesses.

It’s especially important that we find ways to create division among Republicans, who now hold Congress and the White House. The more they disagree, the less they can get done. Two areas that stand out for us are marijuana and sentencing reform. We have enough Republican support on both these issues that we might be able to create dissent within the GOP if Trump tries to do something bad in these areas.

Finally, the rise of Trump and Trumpism has put a national spotlight on white supremacy and misogyny. Everywhere, people are now organizing against hate. Drug policy reformers should be part of that fight.

We can start by taking a hard look at our movement and the marijuana industry we have created. If groups draft legalization laws that ignore racial justice, we need to call them out. If dispensaries, marijuana magazines or other marijuana businesses objectify and demean women to sell their products, or if they exclude people of color, we need to call them out. It is long past time to clean up our own house.

A recent Saturday Night Live skit featuring Dave Chapelle and Chris Rock really resonated with me. The skit revolved around a room full of white people expressing shock that Donald Trump won, and being surprised that so many Americans were racist or blind to racism. Chapelle and Rock got real sarcastic, making fun of the white people for just now figuring out what people of color have known forever.

It is my hope that for all the chaos and oppression a Trump administration is likely to unleash, his presidency will wake people up. That means us: Drug policy reform could be a revolution within a revolution.

Bill Piper is Senior Director of National Affairs for the Drug Policy Alliance.

The Orange County Register:
We’re with Trump. It should be a state-by-state issue. 

This editorial ran in the Orange County Register on Nov. 23. 

President-elect Donald Trump’s nomination of Sen. Jeff Sessions, R-Alabama, to be attorney general of the United States rightly has proponents of marijuana legalization troubled.

Sessions, who at an April congressional hearing remarked that “good people don’t smoke marijuana,” and joked in the past that he thought members of the Ku Klux Klan were “OK until I found out they smoked pot,” is a hard-line drug warrior at a time when most of the nation has signaled a willingness to permit marijuana use.

Recent public opinion polls have shown a majority of Americans support legalization, including polls conducted by Gallup and Pew Research finding 60 percent and 57 percent in support. An additional Gallup poll reported 13 percent of American adults identify as current marijuana users — bad people, according to Sessions — and 43 percent of adults have tried marijuana in their lifetimes.

While concerns over the abuse of marijuana, or any substance for that matter, are perfectly valid, it is clear that growing numbers of Americans no longer are convinced that prohibition and criminalization are justifiable approaches to the issue.

In fact, we now live in a nation where 29 states plus the District of Columbia have legalized marijuana for medicinal purposes, and eight states plus the District of Columbia have legalized marijuana for recreational purposes, despite marijuana officially being illegal under federal law. 

Allow states greater freedom to experiment with differing approaches to complex problems. Like marijuana.

On Election Day, four states — California, Maine, Massachusetts and Nevada — voted to legalize recreational marijuana. An additional three states — Arkansas, Florida and North Dakota — voted to allow medical marijuana in their respective jurisdictions, while Montana voters approved a measure better facilitating access to medical marijuana.

Under the Obama administration, the Department of Justice has effectively taken a hands-off approach, allowing states to try their own approaches to marijuana policy. But marijuana remains a Schedule I drug, illegal under federal law for medicinal or recreational use and distribution.

Going on his record and past statements, the prospects of a hands-off approach to marijuana under a Sessions-led DOJ seem dim. “We need grown-ups in charge in Washington saying marijuana is not the kind of thing that ought to be legalized, it ought to be minimized, that it is, in fact, a very real danger,” said Sessions at a hearing in April.

If there’s any room for optimism, it comes from statements made by Donald Trump throughout his campaign. “In terms of marijuana and legalization, I think that should be a state issue, state-by-state,” he said to The Washington Post last year. He later told Bill O’Reilly that he is “ a hundred percent” in support of medical marijuana.

We completely agree with these stances from Trump. Allowing states greater freedom to experiment with differing approaches to complex problems is often desirable, and this is certainly the case with respect to marijuana.

Ideally, Congress should consider removing marijuana from the federal drug scheduling system entirely to remove any ambiguity about the legal status of marijuana. Short of that, a continuation of the current hands-off policy from the DOJ makes more sense than going against the wishes of the vast majority of Americans.

The Orange County Register is known as one of the nation’s most libertarian-leaning newspapers. The paper’s editorial board declined to endorse a presidential candidate in 2016.