The future of pot legalization under Trump

posted at 11:01 am on November 22, 2016 by Jazz Shaw

We all knew there would be big changes coming with a Trump presidency (as opposed to Hillary Clinton being four more years of Obama) and those shifts cover a lot more issues than just a wall on the southern border. Over at Route Fifty this week they take a look at potential problems regarding the legalization of Marijuana for either medicinal or recreational use in many states around the nation. Of particular interest is the possibility (if not probability) of Jeff Sessions winding up as Attorney General, particularly considering his rather clear history of opposing looser pot laws.

The US marijuana industry’s vibrant growth in the grey area of federalism could be threatened by president-elect Donald Trump and his preferred choice for Attorney General, Alabama Senator Jeff Sessions.

Sessions, an early backer of Trump’s presidential campaign and an outspoken critic of US immigration policy, is also an opponent of marijuana legalization. He has criticized the Obama administration’s approach to drug policy, including its tolerance of states where voters have approved the use of marijuana for medical or recreational purposes.

“It is false that marijuana use doesn’t lead people to more drug use,” Sessions argued in a speech earlier this year. (Researchers are split.) “It is already causing a disturbance in the states that have made it legal. I think we need to be careful about this.”

For those who may have missed it in the past, the real fly in the ointment here comes down to the fact that dozens of states are busy passing decriminalization or flat out legalization laws concerning marijuana, but it remains a Schedule I drug in the eyes of the DEA. The definition of these is as follows:

Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are:

heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote

As long as the DEA turns its attention away from marijuana as a federal prosecution priority, this gray area in the law remains mostly stable. And that’s been the case under Barack Obama’s tenure owing to a 2013 directive from his Attorney General at the time. It told federal agents to, “focus their efforts on criminal enterprises.” The unwritten message there was to pretty much ignore pot smokers and even dealers in states where it wasn’t a crime any longer.

If Sessions takes over and has Trump’s ear, would that change? It all comes down to the Supremacy Clause in the Constitution. Here’s a quick refresher course on that.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So in reality, if that 2013 memo was rescinded and replaced with an order to start busting pot dealerships in the states where recreational use has been legalized, there’s not much the states could do about it. Defendants wouldn’t be charged with any state or local infractions, but could still wind up in prison on a felony charge.

As to what to do about this, I’ve been somewhat on the fence, going back and forth more times than I can recall. I’m not particularly bothered by pot use and the science seems to be a mixed bag as to whether or not it’s significantly more dangerous, habit forming or unhealthy than alcohol. I have a built-in tendency to lean libertarian on such questions, figuring that the responsibility for your health and prosperity is your own, and if you let drugs mess up your life, you’re the one paying the price for it. The use (not the dealing and the drug cartels and gangs who make a business out of it) of pot seems to be a generally victimless crime. That’s another gray area though, because the argument has been made that crime increased in Denver after Colorado legalized pot. True, but legislators counter with an argument that the small uptick had little or nothing to do with marijuana related crimes.

While it’s an unsatisfying answer, I was fairly happy with the status quo which tends to allow the states to make their own call. If they legalize it then they can deal with the consequences and if they don’t, they can conduct their own prosecutions. Small government conservatism reminds us that laws passed and enforced closest to the level of the people remain most directly under their own control so they are the best. That would seem to apply here. Personally, I think the Trump administration has far bigger fish to fry over the next four years than chasing pot smokers.

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