Furthering the mounting evidence that attitudes surrounding marijuana are shifting, a recent Survey USA poll found that two out of three Americans want the Trump Administration to support state cannabis laws as states continue to eye the 2018 elections as a battleground for legalization. Despite Attorney General Jeff Sessions’ very public disapproval of cannabis, the momentum for ending the prohibition of cannabis seems to be gaining strength, putting President Trump in an awkward position as states look to keep the federal government out of cannabis enforcement.
During the Obama years, the former president found himself in an unusual role for a Democratic president: supporting state’s rights over federal oversight when it came to marijuana. As the public debate about cannabis changed during Obama’s years in office, he put in place guidelines, known as the Cole Memorandum, that would keep federal prosecutors from pursuing cannabis cases, opening the door for states to shape their own policies. With findings from Survey USA as well as another poll from Quinnipiac, the momentum surrounding cannabis legalization appears to have carried into the Trump era.
What’s the Trump Administration’s stance?
The new administration brings about significant complications despite the very clear opinion of Americans on the issue, with much of the complexity coming courtesy of Attorney General Sessions. Not only has Sessions said that he will push back against changes in cannabis law but he has even asked congress to allow him to undercut some of the protections against prosecution put into play by Obama. Although it was denied by congress, this would have allowed Sessions to specifically target medical marijuana providers despite state law and the Obama-era precedent.
Even with Sessions’ vehement opposition to state law, however, the trends outlined by Survey USA are very clear – even with age groups and demographics that overwhelmingly voted for Trump. When asked whether states should enact their own cannabis laws, 72% of those 65 and older said that they should while support peaked at 80% for those between 18 and 49. As for prosecuting cannabis consumers in states that allow it, only 12% of respondents thought this was a good idea, kneecapping the possibility of a public mandate for Sessions’ attempt at stringent cannabis enforcement.
What’s the stance of the American People?
Perhaps sensing the public sentiment on the issue, President Trump himself has been reluctant to publicly support Sessions’ point of view even while signaling the possibility of greater enforcement. Part of the hesitance to back his attorney general on cannabis enforcement seems to stem from Trump’s own words on the campaign trail, as he once stated that “I think it should be up to the states, absolutely.” This support for state’s rights on cannabis enforcement has inevitably prompted marijuana advocates to cite Trump’s own words against his administration, including California’s Lieutenant Governor, Gavin Newsom.
While Sessions looks to undermine the public opinion and current state laws, states are getting even more aggressive when it comes to pursuing their own marijuana laws leading up to the 2018 mid-term elections. Even deep red states like Utah and Oklahoma are set to put medical marijuana legalization on the ballot in 2018 while states like Florida, Arizona, Mississippi, Missouri and Nebraska – all states Trump won – are expected to vote on full legalization for recreational purposes during the next election cycle.
Although finding bipartisan support for any issue has proven difficult in the current political mood, a variety of recent surveys suggest that cannabis advocates are poised for a major breakthrough on the state level. While both red and blue states are pursuing approval of cannabis for both recreational purposes and medical use, federal lawmakers still in favor of the cannabis prohibition are finding their viewpoints increasingly estranged from popular opinion. Although it will likely still take time to fully change federal law when it comes to cannabis, even cannabis’ fiercest critics are struggling to find any public support for interfering with state laws.
A group of federal prosecutors are pushing for a uniform path to cannabis enforcement nationwide, but have not offered any recommendations on how it would be executed.
The National District Attorneys Association is using the Supremacy Clause, part of the Constitution that allows federal law to overrule state law, to justify their call for enforcement. In a white paper released on April 20th, prosecutors called for consistent enforcement of marijuana laws in order to “maintain respect for the rule of law.” But instead of outlining tactics and strategies, the paper takes one small step away from the Supremacy Clause by encouraging more research on marijuana’s health effects and public safety issues.
“The National District Attorneys Association (NDAA) supports ongoing research into medicinal uses of marijuana and its derivatives, carried out consistent with any other research regulated by the Food and Drug Administration (FDA). NDAA also supports research regarding the impact of marijuana use on driving, regulated by appropriate agencies.”
The paper has been met with criticism from marijuana activists, specifically for its disregard for the Cole Memo, a policy outlined by the Justice Department under the Obama administration that directs prosecutors and law enforcement, “not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
In response, Eric Zahnd, prosecuting attorney for Platte County, Missouri who helped craft the paper, admitted that the Cole memo was intentionally ignored, despite its significance in reforming the war on drugs. “We have not taken a position on that, and purposefully did not take a position,” he said. “This report was never an attempt to address every controversial topic regarding marijuana use, but we wanted to address some of the important topics.”
Those topics focus on how marijuana legalization at the state level effects the public, specifically in reference to driving under the influence and how legalization affects children’s access to marijuana. “We need more research on both what constitutes impairment and how we are going to measure impairment,” said Zahnd.
Stan Garnett, the district attorney for Boulder County, Colorado, was an outspoken member of the group who contributed to the paper. “I think what this [white paper] reflects is this was a product of a committee within a pretty conservative group: NDAA is not at the forefront of creative social thought,” he said. “This reflects the view of many prosecutors across the United States.”
Some of the concerns addressed in the paper should have been countered by data from the state of Colorado, which first legalized medical marijuana in 2000 and recreational marijuana in 2012. In this state, teen use of marijuana has not changed since legalization, fewer drivers have been charged with DUI’s, and public awareness about marijuana has been made a priority by state health officials. But this didn’t seem to make an impression on the majority of the attorneys.
“We spent a lot of time on the committee trying to make sure they had an accurate understanding of what was happening in Colorado,” Garnett said. “It was pretty clear they didn’t.”
The paper has been distributed to DOJ officials as well as Congress, but hasn’t yet received any significant response.
In December 2014, the federal government made a surprising step in the right direction when it allowed the nation’s Native American Tribes to choose whether to grow cannabis on their land.
Last fall, the Department of Justice issued the Cole Memo, an agreement between the federal government and the states in which marijuana has been legalized, which restricts the feds from interfering with state marijuana laws as long as all eight regulations listed in the memo are followed. The Cole Memo also establishes the same agreement with Native American Tribes, instructing federal attorneys not to prosecute tribes who grow and sell marijuana on their sovereign lands.
The memo lists some guidelines that tribal groups and state governments must follow to prevent interference of the federal government in their activities, such as taking steps to ensure that marijuana is not sold to minors and that profits from the growing or sale of cannabis do not end up financing criminal organizations.
Since the information has been released, two tribes have decided to take advantage of this move by the federal government. Northern California’s Pomo tribe was the first, and has agreed to the development of a $10 million cannabis growing facilities together with United Cannabis. At the same time, the Red Lake band of Chippewa in Minnesota is discussing how they can transform some of their land into a marijuana farm.
While these two tribes are among the first to take action, they are far from being the only ones getting ready to cash in on the growth potential that legalized marijuana can bring. According to press reports, over 100 tribes are thinking of growing marijuana on their land.
Businesses that are already involved in the legal cannabis industry, such as United Cannabis and FoxBarry Farms, are getting ready to become potential partners to Native American tribes who decide to go ahead and allow cannabis cultivation on their territory. Barry Broutman, FoxBarry’s CEO, reported that hundreds of tribes have expressed interest in having legal marijuana growing operations on their territory. Broutman told Huff Post,
“I really underestimated. So many tribes are wanting to do this right now.”
“Tribes want what any government wants for its people, and that’s financial independence. They want to earn their own money, provide education, health care and housing. This new industry allows them to be more economically independent.”
America’s tribes control massive amount of land all over the nation, with many of the territories being sparsely populated, meaning that they will have a lot of extra space that can be used for the cultivation of marijuana. The potential economic windfalls for the tribes and their people are also very good, which means that there are few reasons as to why a Native American tribe would not be interested in participating in the upcoming Green Rush.