Weed Won the Election, But a War to Keep It May Have Just Begun

In the days following election night 2016 the online cannabis community was a buzz with elated headlines like, “Marijuana Wins Big on Election Night!” and “First Bible Belt State Legalizes Medical Marijuana!”. The consensus seemed to be that no matter whom you for for president, weed won the 2016 election.

The following morning Smokers Guide began working on a detailed update of all the newly legalized states and various updates to legislation - like the passing of Initiative 300 in Denver - in order to give our readers a comprehensive view of what is arguably - given the state-by-state and even county and municipality differing regulations - an extremely difficult subject to navigate for medical and recreational consumers a like.

Then Jeff Sessions happened.

On November 18th Trump announced his pick for Attorney General, current Alabama Senator Jeff Sessions. Immediately after democrats and civil rights organizations began stating concern about Sessions’ appointment given his history and views on immigration, civil rights, and criminal justice.

If you’re unfamiliar with Senator Sessions, his work, and views, they include things like supporting an amendment to instate a national ban on same sex marriages and voting against the repeal of “Don’t Ask, Don’t Tell”. When Sessions was being considered for and later denied federal judgeship in 1986, testimony was given that he had called former assistant U.S. Attorney Thomas Figures - a black man - “boy” and that Sessions deemed the National Association for the Advancement of Coloured People (NAACP) and the American Civil Liberties Union (ACLU) “un-American” and “communist-inspired”. Sessions also has a history of obstructionism, blocking even consideration of a nominee via withholding his vote as evidenced in 1996 and 1998 Ninth Circuit Court of Appeals nominees Richard Paez and Marsha Berzon. Sessions waited 1,505 days in the case of Paez and 772 days for Berzon… just to vote.  


Why does weed care?


While all of the aforementioned is incredibly troubling, it’s also concerning - given the fact that marijuana is now legal either medically or recreationally in 28 states - that Sessions has called marijuana reform a “tragic mistake” and criticized the director of the FBI and Attorneys General Eric Holder and Loretta Lynch for not stringently enforcing federal prohibition of marijuana. Sessions has even went so far as to state that he thought the KKK, “was OK until he learned that they smoked marijuana.” (Deep breaths… there’s A LOT wrong with that last sentence.)

Since Trumps election and Sessions nomination the cannabis community has tried to imagine what exactly is going to happen if both of these men should assume office (shout out to Russia for forcing us to further question how the hell this happened). Regarding marijuana, Trump has said, “it’s bad.” In June he told attendees at the Conservative Political Action Conference "Medical marijuana is another thing, but I think [recreational marijuana] it's bad. And I feel strongly about that." In terms of states rights Trump has said, "If they vote for it, they vote for it. But they've got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent." (This might be comforting to medical patients IF a) Trump sticks to anything he says and b) Jeff Sessions and Mike Pence felt the same way.)

For the record, since we can’t just interrupt Trumps quote by shouting, “WRONG,” into a microphone, a recent report by the Colorado Department of Public Safety cited the following observations:

  • Legal marijuana does not seem to encourage crime. Since 2009 property crimes have dropped by 3% and violent crimes have fallen 6%.

  • Directly from the report, “The decreasing social stigma regarding marijuana use could lead individuals to be more likely to report use on surveys…making marijuana use appear to increase when perhaps it has not.”

  • Less criminalization means fewer criminals. This translates into fewer state dollars being spent on prosecution and incarceration.

  • The impact of marijuana legalization on traffic safety is ambiguous. Can alcohol - a federally legal substance - say that?

Oh, and Colorado has a mountain of tax revenue that’s funding all sorts infrastructure and community programs. The biggest problem Colorado has from marijuana legalization is that there is literally nowhere to put all of this money thanks to federal restrictions on banks.

Trump’s response to reefer has varied over the years. In the 1990’s he argued in favor of legalizing drugs to funnel money away from drug tsars and into drug education programs… not a bad idea. Sessions on the other hand has remained steadfast in his stance on marijuana and in April said, “Good people don’t smoke marijuana,” calling weed a, “very real danger” and, “not the kind of thing that ought to be legalized.” Tell that to children suffering from epilepsy, those with Crohn’s disease, or cancer patients trying to eat and keep food down post-chemo. Well… Sessions just might. 

Sessions “New Path” Could Lead Backwards 

Sessions has yet to undergo another round of Senate confirmation hearings. If confirmed (more on this in a moment) he will become the Attorney General and as the nation’s top law enforcement official will have the authority to modify the way the federal government approaches marijuana reform and legalization… even in states where marijuana is already medically or recreationally legal.

Sessions “new path” is speculated to include voiding the Cole Memorandum and disrupting the renewal of the Rohrabacher-Farr Medical Marijuana Amendment. Some have even expressed concern that a Trump Whitehouse could mean the end of the recreational sector entirely. Here’s a closer look at some of what’s at stake: 

The Cole Memorandum 

The Cole Memorandum is a set of guidelines meant to assist federal prosecutors concerning marijuana enforcement under the Controlled Substances Act in light of states with legal marijuana. The memorandum clarifies how the enactment of state laws affects the traditionally joint federal-state approach to narcotics. In a blunt shell, the memo reminds the department of its limited investigative and prosecutorial resources and advises a more passive, or hand-off, approach by the federal government to states wherein marijuana is legal assuming the eight priorities set forth by the memo are not in violation. While nothing in the Cole Memo changes the authority or jurisdiction of the federal government, its prioritization of federal action is still vital to existence of legalization. Voiding the Cole Memo and assuming Sessions leadership, the non-policy policy of not going out of their way to prosecute marijuana cases could completely reverse in direction and businesses that are legal in their state, but still federally illegal, would make easily prosecutable targets on the federal level. 

Rohrabacher-Farr Medical Marijuana Amendment 

The Rohrabacher-Farr Medical Marijuana Amendment is intended to prevent the Department of Justice and the Department and DEA from arresting or prosecuting patients, caregivers, and businesses that are acting in compliance with their state’s medical marijuana laws. The amendment also prohibits the Justice Department from using funds interfere with state medical marijuana laws. Unfortunately, in order for the amendment to remain in effect it must be voted on and passed for renewal each year.

Further complicating the matter is how the current administration of the Department of Justice has chosen to interpret the amendment, having at times argued that federally prosecuting medical marijuana suppliers or seizing property does not prevent states from implementation of state law. In addition, medical marijuana providers and businesses are still left vulnerable in many cases given ambiguity regarding whether or not  it’s in compliance with state law. California for example, while medically legal for years, does not explicitly authorize the sale of medical marijuana via state issued licenses and regulations. Instead California has relied upon local municipal bodies for licensing and won’t begin issuing state licenses until 2018.

 All in all, the Rohrabacher-Farr Amendment was viewed as a huge win for the medical marijuana community but it hasn’t provided the kind of protections for which it was created. The worst part is that we may have to make it work.

Other Obstacles

Current Speaker of the House, Paul Ryan has implemented a set of new rules whereby amendments related to guns, abortion, LGBT issues, and marijuana will no longer be permitted. While some are still trying to figure out how that can possibly be legal in a democracy, it means that advocates for any of the aforementioned issues have only two options: 1) the Senate, which come January will be led by ultra-conservative, fun-hater Mike Pence who governed the state with the harshest marijuana laws in the country and thinks gay people can be “cured” or 2) by proposing a stand-alone bill through committee.

Either way, the chances of getting anything passed are about as likely as PETA teaming up with ALS Ice Bucket folks and drowning a bunch of puppies for charity. (No puppies were harmed during the writing of this sentence. Also, very little social progress was made. Take away: Drowning puppies is never the answer.)

In addition, if the Rohrabacher-Farr Medical Marijuana Amendment isn’t renewed nothing will stand in the way of  of the new rule quietly passed by the DEA regarding the, “Establishment of a New Drug Code for Marijuana Extract.” This new rule means that any extract containing any cannabinoids - including CBD products used by many medical patients - will be coded the same, even if the CBD is extracted from hemp and not marijuana as the new coding is for all genus of the cannabis plant. CBD, before and after this new rule, was and is still considered a Schedule I substance on the federal level. Schedule I substances are defined as having a high potential for abuse and no accepted medical use - even though the US government holds a patent (#6630507) asserting that marijuana does have a medical use. 

What now?

Thus far approximately zero of Trump’s cabinet picks are pro-pot. Most of them aren’t even pro-the agency or department they are supposed to lead (talking to you Rick Perry, Andrew Pudzer, Betsy DeVos, Scott Pruit, and… I know I’m forgetting someone but I still remembered two more things than Rick Perry AND I SMOKE WEED). That being said, we are not doomed. Yet.

Assuming Trump’s Twitter account doesn’t result in nuclear holocaust, blasting all the proceeding worry about weed laws out of the water and/or off the face of the earth, there are several reasons why weed might survive this administration:

  1. Trump has said he supports medical marijuana and that individual states should answer the question of legalization. That being said, the views of his cabinet are far more concerning... especially given their positions.

  2. Aside from Russian-aide, most of Trump’s campaign success can be attributed to his need to please and ignite his base. Trump’s base, whether we like it or not, is now the American people and 60% of Americans - an all-time high - approve marijuana legalization.  

  3. The Donald loves money and marijuana is a $7 billion industry in the United States and is projected to reach $22 billion by 2020. Cutting the recreational sector down would not only cost individual states millions of dollars in tax revenue, but eliminate thousands of jobs… the total impact and consequences of which are difficult to even begin hypothesizing.

  4. Republican’s love small government. To clarify, ask yourself how many times you’ve heard a republican tell you that they just want the government to stay out of their personal lives (also, try to ignore that while they want the government out of their personal lives, it’s apparently okay for the government to be in a woman’s uterus) and/or that government spending is out of control. Well, consuming cannabis - just like drinking a glass of wine - is a personal decision and for medical patients, it can be a life-saving decision. In addition, waging an effective war on weed would result in a lot of out of control government spending.

  5. There is a chance that Sessions will not be confirmed. The same committee that denied him a lifetime-tenured judgeship on the basis of his history of making racially insensitive statements still needs to approve his nomination. In addition, Sessions recently made a potentially damning omission while filling out his questionnaire to the committee. Under the section that asks a candidate to list unsuccessful candidacies for elective office or unsuccessful nominations for appointed office - like his 1986 bid for judgeship - Sessions failed to mention the failed bid. Recent reports from the AFJ (Alliance for Justice) note that Sessions application is, “shockingly incomplete.” Sessions himself has previously stated that it is a, “criminal offense to make a false statement to the government. Two years in jail. A felony.” Hopefully he is held not only to the same standards he himself has espoused, but standards that are legally set by Title 18, Section 1001. Confirmation hearings are set to begin early January.

It’s tempting to wait and see how this plays out… but staying quiet about the number of recreational and medical jobs, the amount of tax revenue, and medical patient benefits that could be lost isn’t an option - especially if you live in a state with new legalization status. Call and write your representatives. Urge them to respect the voters in your state. Remind them of what’s at stake. It’s not just weed, it’s democracy.