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.