The ground has shifted, in the veritable blink of an eye, when it comes to the political outlook for legal cannabis on a federal level.
President Trump said last week that he would “probably” support bipartisan legislation to protect states that have legalized cannabis. The bill in question was introduced by Democratic Senator Elizabeth Warren, of Massachusetts, and Senator Cory Gardner, a Republican from Colorado.
The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act was introduced a day earlier, and immediately stood out from the plethora of cannabis bills that had already been introduced, but had failed to garner much support. The bill would amend the Controlled Substances Act to exempt those following state laws “relating to the manufacture, production, possession, distribution, dispensation, administration, or delivery of [cannabis]."
Trump said last week:
"I support Senator Gardner. I know exactly what he's doing. We’re looking at it. But I probably will end up supporting that, yes."
The news is a bombshell, following more than year of mounting doubt and dread rippling through the burgeoning cannabis industry, starting with the administration’s appointment of hardliner Jeff Sessions as attorney general. Fears were exacerbated by Session’s contradictory doublespeak on the issue, by Trump’s apparently strategic silence, and they finally peaked with a move by Sessions to revoke the Cole memo in January, just days after California’s prop 64 legalization went into effect.
How did we get here?
With the media and a number of political analysts over the past year and a half mulling the idea of a brutal Trump administration crackdown on legal cannabis, what is it that led to such a dramatic shift in fortunes?
It’s hard to say with certainty, but a few things are worth considering. Trump’s relationship with Sessions has plummeted to the depths of what was thought possible for a president and one of his own cabinet members. It started with Sessions deciding to recuse himself from the Russia investigation. Since then, Trump has essentially taken every opportunity to publicly display his contempt for Sessions. He has repeatedly expressed that he wishes he had chosen someone else for attorney general, and even worked to turn his adoring masses against Sessions, with an accusation that the attorney general “has taken a VERY weak position on Hillary Clinton’s crimes.”
Trump has also reportedly taken to calling Sessions “Mr. Magoo” in private.
So, while Trump has stopped taking Sessions seriously altogether, the political situation for legal cannabis has only continued to improve, with more states legalizing recreational and medical cannabis. In response to the January revocation of the Cole memo, Senator Gardner (a Republican, it bears repeating) vowed to block all Justice Department nominees until Sessions backed down on legal cannabis. In April, after blocking a number of nominees, Gardner reported that he had reached a deal directly with Trump, who pledged to support a measure to ease the conflict between state and federal laws. The White House confirmed that account at the time, and it now seems to be coming to fruition.
In the meantime, Vermont became the 9th state to legalize cannabis for adult recreational use, and approval of cannabis legalization among Americans has continued its gradual yet steady increase, reaching 61 percent in a Pew poll released in January. An even higher 75 percent support allowing states to decide for themselves. With Democrats gaining ground in special elections, the stakes are high for Republicans in November’s election. Coming down on the unpopular side of the cannabis issue may not have stopped the core Republican voters from coming out, but it might have affected younger voters and independents. For perhaps the first time in American history, supporting legal cannabis may have been the politically safer bet. There may be a hardline conservative core that won’t like Trump’s decision - but it’s safe to say they won’t be voting for Democrats in response.
What would it mean?
Cannabis arrests are still the most common type of drug related arrest in America. About 600,000 people each year are arrested on charges related to cannabis. First and foremost, the STATES Act would ensure that federal law enforcement must refer to state laws in relation to cannabis. A total of 46 states have some laws decriminalizing or legalizing medical or recreational cannabis, so such a law would have far-reaching effects.
The most dramatic effect though, since federal law enforcement already leaves most lower-level drug enforcement in the hands of states, would be on the cannabis businesses themselves. Federal agents could no longer raid or seize property from state-legal businesses. And, in a measure that could have an even more concrete effect on the status quo, the act would explicitly state that banking transactions by these state-legal businesses “are not trafficking,” potentially opening up the banking system to the cannabis industry. In practice, these limitations have perhaps done more to hold back cannabis businesses than the other, more draconian aspects of federal prohibition.
Of course, tax difficulties and the potential for remaining banking complications could continue to plague the industry. Some banks may still avoid doing business with cannabis companies, or could still impose higher fees. While the passage of the STATES act would not instantaneously clear every obstacle for cannabis operators, it would send a message that would be tough to ignore - cannabis is gaining legitimacy, even on a federal level. This is a message that many investors may be waiting to hear before going all-in on legal cannabis. And the practical effects of this gesture could outweigh any real-world changes that would come directly from keeping federal law enforcement out of cannabis enforcement in legal states.
In fact, Trump merely voicing his support for such a measure could turn out to have an encouraging effect on an industry that is still being held back due to doubts about an uncertain future.
Is it realistic?
There’s no doubt that Trump’s seal of approval vastly improves the likelihood of passing such a bill, but its ultimate success still depends on the acquiescence of the other Republicans who control Congress. Trump can be accurately called a lot of things, but a traditionalist is not on the list. The average congressional Republican is likely to be more resistant to supporting cannabis than Trump has been. These conservative holdouts, in the mold of Sessions, have a range of legislative tools at their disposal to stop the STATES act in its tracks, and during an election year, they will likely be more cautious than ever.
Opponents will also enjoy support from the Departments of Justice and Treasury, the DEA, and police organizations, as well as popular support from the old-school Christian Right, and perhaps even some traditionally minded Democrats.
However, the bill has a wide-ranging list of initial co-sponsors, from both parties and both houses of Congress. Many Republicans, and prohibitionist Democrats like Dianne Feinstein, have come around to favor a state’s rights approach to the issue. Outside of DC circles, a range of organizations have voiced support for the measure, including the ACLU, Americans for Tax Reform, the Massachusetts Bankers Association, the New Federalism Fund, and of course an array of cannabis advocacy groups such as NORML.
The STATES act is probably still looking at an uphill battle to becoming law. But whatever the outcome, a federal cannabis reform measure enjoying bipartisan support, including from a Republican president, is another landmark moment in the history of cannabis.