JURIST Guest Columnist Hilary Bricken, of Canna Law Group, discusses the Trump administration and how it could impact the status of cannabis at the state level…

With a recent Gallup poll showing 60 percent of Americans favor cannabis legalization, it should come as no surprise that eight out of nine states voted for marijuana legal reform through ballot initiatives in this past election. In California, Nevada, Maine, and Massachusetts, voters approved the legalization, taxation and regulation of marijuana for adults 21 and older. And in Florida, North Dakota, Arkansas, and Montana, voters approved various medical marijuana legal regimes. Arizona, which already has medical marijuana, was the only the state that failed to pass its marijuana ballot initiative.

Of all of the states that recently legalized, California and Florida will undoubtedly be the ones to most impact progress for national marijuana law reform. California has a pre-existing, vast medical marijuana industry that will finally come under significant state regulation and Florida will become the first state in the conservative Southeast to have a comprehensive medical marijuana licensing system. Both of these states are large in size with massive populations to match and, perhaps most importantly, both states have substantial influence on federal policies and lawmaking. Marijuana law reform in California and Florida should bolster the momentum of state-by-state legalization and “medicalization” of marijuana, in spite of the current federal law that renders marijuana illegal.

Though state legal marijuana netted large gains this November, national marijuana legalization (or even the re-scheduling of marijuana) remains uncertain given the new presidential administration.

When it comes to President-elect Donald Trump, it is anyone’s best guess as to what will happen with marijuana. Trump made various statements throughout his campaign on every side of the marijuana legalization issue. During the campaign he jumped between positions ranging from full-on legalization to saying that it cannabis is a states’ rights issue, to saying that legal marijuana has caused “a lot of problems in Colorado.” Regardless of Trump’s marijuana vacillations, the most important appointment President Trump can make for the marijuana industry is for attorney general, who heads up the Department of Justice, the agency that enforces and prosecutes federal crimes, including federal drug laws. Federal enforcement against state-legal marijuana enterprises is generally handled under the 2013 Cole Memo, which outlines the federal marijuana enforcement policy of enforcing the federal Controlled Substances Act only under egregious circumstances in those states with a comprehensive state legal medical marijuana regime.

It is important to realize that the Cole Memo is not law, but rather a mere statement of policy by the Department of Justice. This means it can be withdrawn by the Department of Justice pretty much any time by the new Attorney General. In other words, the newly legalized cannabis industry is to a certain extent beholden to the whims of Jeff Sessions, the new attorney general.

To put it bluntly and to state what should already be obvious to most of you, the appointment of Jeff Sessions as attorney general does not bode well for marijuana users or state-legal marijuana businesses. Sessions is a known drug war proponent who testified at an April Senate hearing that, “good people do not smoke marijuana,” and who believes that marijuana is more harmful than alcohol because “Lady Gaga says she’s addicted to it.” Fortunately, just because Sessions dislikes marijuana does not automatically mean we should expect to see increased federal law enforcement action against marijuana users or marijuana businesses in states that permit them. Any federal attempt to undo state-legal marijuana legalization would be incredibly unpopular politically, and it seems Sessions wants to focus on national security, terrorism, and immigration as his primary areas of attention. To put this in political perspective, 70 percent of Florida voters voted to legalize medical marijuana in that state and many of those who voted for legalization had to have voted for Trump. I just do not see the Trump administration launching a new war against cannabis when this does not appear to be a big issue for him and when doing so would anger so many.

Importantly, Sessions is restricted when it comes to medical marijuana. So long as the federal spending bill continues to say that the federal government cannot spend money to interfere with state medical marijuana laws, Sessions should be hamstrung in his ability to take anti-cannabis actions at least in those states with medical cannabis regimes.

But beyond the political calculations, there is little stopping Sessions from going after state-legal marijuana businesses that “touch the plant” as part of their recreational marijuana operations. There is nothing legally preventing federal agents from raiding recreational marijuana businesses, as possessing, distributing, processing and manufacturing marijuana remain illegal under federal law and the federal spending bills only apply to medical marijuana. The Cole Memo is not going to stop the Department of Justice, and anyway, as mentioned above, Sessions can withdraw or nullify that memo with the stroke of his pen. Logistically, however, there simply are not enough federal agents or resources to enforce federal marijuana laws everywhere, but that will not necessarily stop them from targeting big players to set an example. President Trump has already essentially conceded the logistical folly of deporting around twelve million illegal immigrants and we are optimistic he (and even Sessions) will eventually need to implicitly or explicitly concede that using federal law enforcement to shut down state-legal recreational cannabis operations is equally unwise.

Lastly, Sessions still has to go through the confirmation process. The last time he went through this process in trying to secure a federal judgeship, in 1986, he was rejected for having made a slew of racist comments. There is no reason to believe he is any less racist now (as this is a man who accuses confederate flag critics of “…seeking to delegitimize our country’s accomplishments”), but it is still unlikely he will be rejected this time. Nonetheless, there will no doubt be political pressure on Sessions from both parties to maintain his focus on real law enforcement and leave marijuana policy to the states. The hope of all of us in the marijuana industry is that he and the Department of Justice will have far bigger fish to fry than state-legal marijuana. But only time will tell.

Hilary Bricken is a partner at Harris Bricken, LLP in Seattle, Washington. Licensed to practice law in Washington, California, and Florida, she is one of the premier cannabis business and regulatory attorneys in the United States. As chair of Harris Bricken’s Regulated Substances practice group, which includes the Canna Law Group, she helps cannabis companies of all sizes with their cannabis related legal issues.

Suggested citation: Hilary Bricken, Fear, Loathing and Jeff Sessions on State-Legal Marijuana, JURIST – Hotline, Dec. 6, 2016, http://jurist.org/hotline/2016/11/Hilary-Bricken-Fear-and-Loathing.php.