Monday, November 28, 2016

Federal Marijuana Enforcement Policy in the Trump Administration

by Michael Dorf

The announcement that President-elect Trump plans to nominate Jeff Sessions for Attorney General was newsworthy chiefly because of the extreme views Sessions has previously expressed and the actions he has taken with respect to civil rights and immigration. However, as a story in the New York Times last week noted, Sessions has also been highly critical of the Obama administration's policy of mostly forgoing enforcement of federal law with respect to marijuana in those states in which it has been made legal either for medical purposes or more generally. Because that policy takes the form of various internal Justice Department guidance memos (like this one in 2011 and this one in 2013), rather than a regulation, much less a statute, a new Attorney General could easily rescind it and change enforcement priorities.

Whether Sessions actually would attempt a federal crackdown partly depends on how much authority Trump delegates to him. It is 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, Texas) 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 overall, and for that reason, it is possible to imagine Trump or his political people attempting to restrain Sessions.

Suppose they fail to do so and that 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. I'll now explain why.

As The Times story noted, 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 DOJ and Drug Enforcement Agency (DEA) focused on major distribution networks, although occasionally the Feds would participate in "federal days"--jointly making arrests with local authorities and prosecuting some of the arrestees in federal court on federal charges. Even if the Sessions DOJ were able to conduct some 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.

Accordingly, to be at all effective, a federal crackdown would mostly have two targets. First, as suggested in the Times story, the federal government could sue state authorities to enjoin those aspects of the 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 (and curiously unmentioned in the Times story), the DEA could readily go after easy targets, such as the retail marijuana shops and those state-approved growers that operate in the open. After even 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 of course that wouldn't make marijuana disappear from states in which it is legal. A Sessions crackdown along the foregoing lines would return those states to conditions before legalization, 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, the state and local politics would mostly preclude returning to pre-legalization state and local efforts to combat marijuana.

Hence, the post-federal-crackdown landscape in states that have legalized marijuana 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 government would not expend many 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 the 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.


Shag from Brookline said...

The "worst case" may, as in the Prohibition Era, create "smokeasies."

Joe said...

How does the funding provision (which passed with some Republican support and was bipartisan sponsored) that cuts off funds to prosecute in states where marijuana is legal to some degree factor in here?

Joe said...

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

Hey. This is a family blog.

Michael C. Dorf said...

Joe raises an important question about funding. Appropriations riders in the last few years forbid the use of federal funds to be used to "prevent" states that legalize recreational or medical marijuana "from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana." In August, in U.S. v. McIntosh, , the 9th Circuit found that the federal law forbade prosecution of state-legal marijuana offenses. The government argued that the federal rider only blocked interference with the state itself, not with individuals who were complying with state law but violating federal law. The 9th Circuit rejected that argument but other circuits and/or the SCOTUS could disagree. It's also possible that a future appropriation could drop the rider.

David Ricardo said...

Yes, this is an interesting topic, both from a legal point of view and from a policy point of view, but as Mr. Dorf points out, it is largely irrelevant as the Feds have neither the political support nor the resources to go against state marijuana usage. Even if Grand Wizard Sessions wanted to make this a cause, he cannot do so.

It seems like there are other more critical issues that need to be addressed with respect to the forthcoming Trump presidency. In particular is Trump’s bogus, unsupported and ridiculous claim that there were millions of illegal votes for Clinton that deprived him of a win of the popular vote. The media has done a slightly better job than usual of rejecting this claim, but that does not mean that millions of Trump supporters will embrace it as gospel.

The most benign explanation of Trump’s comments is that this is just the manifestation of his massive ego that cannot accept losing, and so if he has to outright lie about the vote to salvage his pride, he has not compunction about doing so. But I am wondering (and asking Mr. Dorf, Ms. Colb and Mr. Buchanan to opine on this in the future) if there is something more going on here. It was seem that Trump’s purpose is to ultimately undermine the democratic process, to tar voting as something that is corrupt to the point where it cannot be relied upon to reflect the will of the people, and so to gradually turn the U. S. political process into a Russian one, one that he undoubtedly admires because it means a leader is not beholding to the citizens, but to himself. In short, a Trump presidency combined with Republican success in rigging the election process could mean the end of democracy as we know it, a government that no longer represents popular vote (as in Ms. Clinton getting 2+ million more votes than Trump and losing).

For those skeptics who are smiling at this post I would direct you to my current state of residence, North Carolina. Here, instead of accepting the verdict of the voters the Republican incumbent is not just contesting the voting but is actively engaged in discrediting it. This despite the fact that elections are governed and controlled by officials of the Republican party. Although no one thinks it will happen, one speculation is that Gov. McCrory’s goal is to so discredit the vote that the Republican legislature will declare him the victor, which under the N. C. constitution it has the right to do.

Are these not more important legal, political and policy issues than marijuana?

Michael C. Dorf said...

In response to David Ricardo: Yes, there are many many things to worry about from Trump, his supporters, and his enablers. My focusing on one that doesn't crack the highest-priority list does not imply that I'm unconcerned about the others. On Wednesday, my Verdict column and blog post will discuss the conflicts of interest, which I rank about #5 of the risks of a Trump presidency, following: 1) The end of life on planet Earth because of awful environmental policy; 2) the end of life on planet Earth because Trump could start a nuclear war due to his erratic personality; 3) the end of American democracy because of Trump's willingness to use any means to hold power; and 4) the loss of civil rights and civil liberties by millions of Americans and others. I'm not committed to that order or to excluding other risks from the list. We have no mere basket, but a veritable cornucopia of deplorable possibilities.

David Ricardo said...

While we appreciate his response, for some reason Mr. Dorf's post does not make us feel better.

Shag from Brookline said...

I await Mike's posts on on major topics of concern to many of us. I imagine Trump in his inaugural speech doing a variation on JFK's:


Shag from Brookline said...

Or, Trump may provide this variation on that great Republican President Calvin Coolidge:


[This is a re-run comment of mine at this Blog or perhaps at Balkinization.]

The Daily Show last night had a feature on potential Trump business conflicts as President. Trump might rely upon the Richard Nixon precedent on the David Frost interview that if the President does it, it's not against the law.

Mike will be addressing emoluments. Will he also address Article II's "take care" clause? The potential conflicts can involve domestic policy as well as foreign policy. Is the presidency a part-time job?