DECEMBER 28, 2016
Californians may have voted overwhelmingly on Nov. 8 to legalize marijuana, but Americans also elected Donald Trump, whose position on legalization has been a bit — hazy. That’s a potential problem because marijuana is regulated under federal law, giving Trump and his administration veto power over whether California and the seven other states that have voted to legalize cannabis can really do so.
So where does the president-elect stand on pot? He has said he supports individuals’ right to use medical marijuana “100%,” which is good news for the 29 states that allow medicinal use of pot. As for adult recreational use, which Californians approved through Proposition 64, it’s hard to say what he believes because his statements have been all over the map, shifting from audience to audience.
In a 1990 speech in South Florida, where drug cartels had waged a bloody fight in the 1980s, Trump said that the nation’s war on drugs had been a failure; it would be better, he said, to legalize and tax drugs and spend the money on drug prevention. (Sounds a bit like The Times’ endorsement of Proposition 64.) But that was 26 years ago. During his presidential run, Trump told Fox News host Bill O’Reilly, a staunch prohibitionist, that he was concerned Colorado’s decision to legalize recreational use was causing “a lot of problems out there.” Then, while campaigning in Nevada (where voters last month passed a ballot measure to allow adult use of marijuana), Trump said legalization should be decided by the states.
If that last statement gave a glimmer of hope to advocates of legalization, Trump undermined it with his nominee for attorney general, Alabama Sen. Jeff Sessions, a hard-line opponent of reforming marijuana laws.
During a Senate hearing in April on how the Department of Justice was dealing with states that have legalized cannabis, Sessions declared that “good people don’t smoke marijuana.” And he’s been a frequent critic of the Obama administration’s hands-off approach to states that allow medical and recreational marijuana.
For the last three years, the Justice Department’s policy has been to not interfere with states that allow the commercial sale of marijuana as long as there are strict regulations in place, including rules to prevent sales to minors and to block criminal enterprises from participating. That policy guided California lawmakers as they crafted new medical marijuana licensing regulations in 2015, as well as the advocates who wrote Proposition 64. Sessions, however, has said the DOJ’s policy is wrong. “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,” he declared in April.
If Sessions does take charge of the Justice Department, he could reverse the DOJ policy and undermine California’s new rules. That would be a step backward. In most of the states that have voted to legalize marijuana, commercialization has ushered in much-needed regulation. It’s how Colorado sought to ensure the safety of the marijuana people were already consuming. It’s how California will attempt to stop illegal cultivation, which has devastated sensitive ecosystems. The goal of Proposition 64 is to eliminate the black market and transform the existing multibillion-dollar underground industry into one regulated for consumer safety, environmental protection and public health.
Even if the new administration doesn’t reverse the Justice Department policy, it will still need to be a partner in creating common-sense policies. For example, because marijuana remains illegal under federal law, pot shops typically can't open bank accounts or accept credit cards because financial services companies fear being penalized by federal regulators for handling money from unlawful drug sales.
That means marijuana products are typically sold for cash, and dispensary owners pay their employees, their landlords and their taxes in cash, inviting crime and making it harder to regulate the sale of cannabis. With such problems in mind, California Treasurer John Chiang recently sent a letter to Trump seeking guidance on how his administration would deal with the conflict between state and federal law.
Decades of experience has shown that the U.S. can’t win a war on marijuana. It would be foolhardy for the federal government to dig in on cannabis prohibition now, when voters are increasingly choosing to legalize the drug for medicinal and recreational use. Trump and his attorney general ought to adhere to the will of state voters and demonstrate the kind of pragmatic leadership on marijuana policy that has too often been missing in the federal government.
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