12.16.2016
policy

Don’t Look Now, but the War on Weed May Be Back On

Trump is stacking an unchill law-enforcement and policy deck.

Alarmism is never a virtue, except in cases when the house is on fire, and there are a lot of reasons for marijuana consumers, entrepreneurs, and sympathizers to smell smoke in President-elect Donald Trump’s incoming administration.

Start with the anti-chill trinity at Justice, Health, and Homeland Security: Trump’s pick for Attorney General, Senator Jeff Sessions of Alabama, admits that he once joked he thought the Ku Klux Klan was a cool organization—until he found out they smoked pot. Sessions is on record as telling the U.S. Senate, in April 2016, that “Marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized. It’s in fact a very real danger.”

To be clear, Sessions summarized, “Good people don’t smoke marijuana.”

Sessions is likely to have no argument on that point of view from Representative Tom Price (R-Ga.). Price, tapped by Trump to head the Department of Health and Human Services, has an unblemished record of voting to uphold the federal government's right to crackdown on marijuana operations that are legal on the state level.

From Marijuana.com:

“As a member of the U.S. House, Price voted six times against amendments to prevent the Justice Department from interfering with state medical marijuana laws. He also voted three times against amendments to allow military veterans to get medical cannabis recommendations through Department of Veterans Affairs doctors. And he also voted against a broader amendment to protect all state marijuana laws—including ones allowing recreational use—from federal interference.”

In regard to maintaining marijuana criminalization at the national level, the opinions of Retired Marine General John F. Kelly march strictly in line with presumptive HHS Secretary Price’s views. This alliance is noteworthy because Retired Marine General Kelly is Donald Trump’s candidate to head up the Department of Homeland Security.

Kelly told the House Armed Services Committee in 2014 that marijuana normalization runs contrary to national (or “homeland”) security.

More from Marijuana.com:

“Most of the countries I deal with were in utter disbelief that we would, in their opinion, be going in that direction, particularly after 25 years of encouraging them to fight our drug problem in their countries. Every now and again, the term ‘hypocrite’ gets into the discussion… It is hard for me to look them in the eye and tell them, ‘You really need to, you know, stay shoulder to shoulder with us,’ because they see us in a sense giving in.”

Kelly displayed an inch or so of surrender himself on the topic of medical marijuana, telling Military Times: “If it has a medical use—and I’m not a doctor, but I’m told it has a medical use—then fine. Medicine is medicine.”

However, in General Kelly’s opinion (which goes contrary to the current U.S. Attorney General's view) weed is a “gateway” to harsher substances. In 2014, Kelly assured the House of Representatives that although Colorado and Washington state had normalized recreational cannabis, “It’s still against federal law, and the law will be enforced.”

Image via Flickr

At their combined command, weed haters Sessions, Price, and Kelly wield all the weaponry, surveillance systems, manpower, and mandates of the Federal Bureau of Investigation, the Drug Enforcement Administration, U.S. Marshals Service, Bureau of Prisons, Bureau of Alcohol, Tobacco, Firearms and Explosives, the Offices of Legal Policy and Public Affairs, the Food and Drug Administration, the National Institute on Drug Abuse, U.S. Customs and Border Protection, U.S. Customs and Immigration Enforcement, United States Secret Service, Transportation Security Administration (TSA), and the Office of Intelligence and Analysis.

That’s a lot of power and resources concentrated among three true believers in cannabis as an evil. At a wider level, a willingness is being fanned at some of the highest levels of government to employ this powerful and far-reaching agency in a fresh assault on the human tendency to get high.

Sessions's advocacy for the DEA may end up meaning he will be attacking the free press, a favorite target of Donald Trump.

On December 5, 2016, six former Drug Enforcement Administration heads and two former Directors of National Drug Control Policy (including the country’s first “Drug Czar,” William J. Bennett) sent a joint letter to Senate leaders. Introducing themselves as “former government officials involved in the development and administration of the United States’ drug policies,” the War on Drugs hawks encouraged the Senate leaders to accept Jeff Sessions as Attorney General based on his “reputation as a tough, determined professional who has been dedicated to the appropriate enforcement of the rule of law.”

When he takes the top cop chair, Sessions won’t be relying only on the backing of the people who crafted the strategies of the more-harm-done War on Drugs. He also, most likely, will be advocating for the concerns of his new underlings at the Drug Enforcement Administration.

Sessions's advocacy for the DEA may end up meaning he will be attacking the free press, a favorite target of Donald Trump.

Image via Flickr

The DEA’s 2016 year-end Drug Threat Assessment report spent 22 pages warning about the perils of marijuana. To put that in perspective, the Drug Threat Assessment uses only 16 pages to cover the dangers of prescription painkillers, which have been killing in the neighborhood of 14,000 people a year since 2014

This year alone, the DEA declined to move cannabis off Schedule 1 designation as a harmful drug with no medical value, and moreover ruled that CBD—a non-psychoactive cannabinoid—is also a Schedule 1 substance. The DEA, contrary to demographic shifts and voter initiatives across the country, continues to define weed—including medical— as a serious threat. DEA Acting Administrator Chuck Rosenberg has called medical marijuana “a joke.” The agency is out of step, and it knows it is out of step. All it really wants is for the American media to get back in step with it.

From the DEA’s 2016 Drug Threat Assessment:

Many states have passed laws allowing the cultivation, possession, and use of marijuana within their respective states. Due to these varying state laws, as well as an abundance of media attention surrounding claims of possible medical benefits, the general public has been introduced to contradictory and often inaccurate information regarding the legality and benefits of marijuana use. This has made enforcement and prosecution for marijuana-related offenses more difficult, especially in states that have approved marijuana legalization.

Not all the “abundance of media attention” surrounding marijuana is intent on tripping up the DEA. One mainstream media narrative—popping up in places like Time and CNBC—suggests that a Trump administration is unlikely to go after state-sanctioned marijuana operations.

Earlier in December, Adam Bierman, chief executive officer and co-founder of Los Angeles-based cannabis firm MedMen and a longtime supporter of Marijuana Policy Project, posted a guest editorial on CNBC titled “Even Jeff Sessions Can’t Stop the Marijuana Train.” Bierman’s reasoning relies heavily on rationality and logic, two attributes that might be in short supply after January 20. The MedMen chief points out that Representative Dana Rohrabacher (R-Calif.) trusts Donald Trump to leave legal weed alone. (Rohrabacher co-authored the Rohrabacher-Farr Amendment, a spending-bill rider that withholds funding for federal prosecution of state-sanctioned marijuana activity.) The President is not empowered to nullify state laws, points out Bierman, and Congress is unlikely to pass further federal laws against marijuana because “the vast majority of Americans today favor legalizing marijuana, about 60 percent.”

Unfortunately, or pessimistically, Congress does not need to pass any new anti-marijuana laws for federal havoc to descend on the state level. 

Unfortunately, or pessimistically, Congress does not need to pass any new anti-marijuana laws for federal havoc to descend on the state level. Marijuana, on the books of the United States Criminal Code, is still as illegal as a Schedule 1 narcotic can be. Beyond that, federal racketeering and conspiracy laws and asset forfeiture policies are already in place to maximize sentencing vulnerability and financial loss to any marijuana entrepreneurs a Sessions Justice Department might decide to target.

Maybe the federal powers will save their strength and go after a more difficult target, but if reanimated Drug Warriors are in the mood for easy pickings, pot might represent that first taste of low-hanging victory.

Image via Flickr

The Rohrabacher-Farr Amendment itself, for instance, is only temporary. As cited by the NORML blog on December 14, 2016, Rohrabacher-Farr federal protections extend only through April 28, 2017. Re-upping the amendment is not a rubber-stamp certainty—for a number of factors complicated and obvious. If Rohrabacher-Farr is not renewed, a very significant barrier to federal prosecution of state marijuana use and commerce will be removed. 

That prospect didn’t seem daunting to Time, Inc. on December 8, 2016, when Katy Steinmetz presented “7 Reasons President Trump Is Unlikely to Fight Legal Marijuana.”

The Time seven reasons boil down to 1) a war on pot would defy the will of many voters, 2) public opinion is moving toward embracing pot, 3) Trump has been quoted as favoring medical marijuana, 4) attacking weed does not seem high on Trump’s list of priorities, 5) a war on weed would need to be funded, 6) marijuana is lucrative, and 7) “the extent of the federal government’s authority over these matters is unclear.”

Trump has a history of vindictive behavior. Seven of the eight recreational-legal states voted against him in the 2016 election. 

Time’s optimism is fact-based, well-reasoned, and almost infectious, except that:

1) The President-elect's cabinet picks indicate that the will of pro-pot voters is of little concern to him.

2) It is difficult to point to an occasion when public opinion modified the actions of Donald Trump.

3) Here's a contradictory Trump quote on recreational weed in Colorado: “I say it's bad.”

4) Attacking weed does seem to be prioritized on the lists of Trump’s picks for Attorney General, Secretary of Health and Human Services, and Director of Homeland Security—the three federal policy-and-enforcement powerhouses best situated for attacking weed.

5) The War on Weed could start with a Justice Department letter to the governors of all legal weed states stating that regulating marijuana sales is a violation of the Controlled Substances Act, giving those governors 90 days to revoke licenses. Cost of that first salvo? Postage. Proceeding from there, as of April 28, 2017—with the expiration of the Rohrabacher-Farr Amendment—a Jeff Sessions Justice Department would be free to use its considerable funds in any way it deems most effective against marijuana.

6) Trump has a history of vindictive behavior. Seven of the eight recreational-legal states voted against him in the 2016 election. He may be motivated to deny the financial windfall of legal weed to those states. Indeed, stamping out the state-by-state cannabis-legalization movement might be presented as a way to increase the proportion of Trump-friendly voters showing up in 2020. If no one arrives at ballot stations to vote for weed, those same voters also will not be there to elect Trump's opponent.

7) The extent of the federal government’s authority is indeed unclear. God only knows how far it will go.

If the War on Drugs has imprinted any lasting lesson, it's that agents of the federal government are accustomed to doing whatever they want. It's hard to picture any dispensary in, for instance, California having a line of defense against the unannounced arrival of a militarized DEA task squad. To think that local police forces would intervene to protect their home constituents is farfetched: For one thing, cop groups can be expected to oppose legal weed, even in states that passed it.

Think a return to marijuana prohibition can’t happen here? Well, it’s happening elsewhere: Even in Amsterdam, where the quasi-legal public consumption of cannabis has been entrenched for decades as a tourist attraction, local freedoms are being curtailed by the federal government.

Hope for the best. Be ready for a fight.

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