The Trump administration has stayed relatively quiet on the subject of state measures to legalize recreational marijuana. However, recent statements from Press Secretary Sean Spicer and Attorney General Jeff Sessions would suggest a change in tone from candidate Trump’s earlier statement that he’d be willing to let states chart their own course on marijuana policy. Although such a change in policy will likely prove ineffective, the uncertainty it creates only goes to highlight the necessity of congressional action to give states the necessary leeway to pursue their own reforms without relying on executive indulgence.
Since the passage of California’s Proposition 215 in 1996, some 28 states have legalized medical use of marijuana, and eight have passed full legalization, with half of that number coming in the last election. While those eight states passed their reforms at the ballot box, a number of other states are considering legalization bills in the current legislative session. Naturally, this change in the legal landscape has accompanied a shift in public opinion. According to Gallup, support for legalization has gone from about 25 percent in 1995, the year before Proposition 215, to 60 percent late last year.
All of this has occurred with varying degrees of forbearance on the part of the federal government. The Clinton and Bush administrations pursued fairly aggressive policies toward dispensaries and even patients in medical marijuana states, and the Obama administration continued the trend. Then, in 2013, the Obama DOJ issued the Cole memo, which instructed federal authorities to lay off those who were in compliance with state law. This relative détente has held up to the present. In fact, this approach of ad hoc federalism enjoys solid public support. A Quinnipiac poll from February found 71 percent of Americans opposed federal enforcement of prohibition in states that have legalized, and even among Republicans that figure stood at 55 percent to 36 percent against.
Of course, this shift from the long-dominant prohibitionist orthodoxy hasn’t been without controversy. In 2011, just after legalization passed in Colorado and Washington, Hillary Clinton maintained that there was “too much money” in black market marijuana for it to be legalized, and Ed Feulner, former president of the Heritage Foundation and member of Trump’s transition team, just this past fall called for a re-declaration of the War on Drugs, explicitly including marijuana. In that piece he singled out data from Colorado showing increases in “marijuana related” emergency room visits and hospitalizations, as well as “pot-positive” traffic fatalities. However, as detailed in a report by the Colorado Department of Public Safety in March 2016, the data don’t lead so readily to alarmist conclusions. In fact, Colorado’s own governor, John Hickenlooper, has gone from musing about undoing legalization if only he had a magic wand to guarded optimism.
Despite the ominous statements from administration officials, Trump himself apparently struck a more accommodating tone in a meeting with state governors in late February. Even though he made no explicit mention of marijuana, he signaled a willingness to let states pursue their own policies without fear of federal interference. Given the impossibility of policing a combined population of 70 million in the states that have legalized with the roughly 5,000 special agents of the DEA, it would seem like an easy call for the administration to prioritize investigations of otherwise violent traffickers over hounding commercial growers and retailers complying with state law. Furthermore, letting legalization run its course in the states might be one of the best ways to undercut the black market. In an NPR report from 2014, one Mexican grower they interviewed reported that the wholesale price per kilo had fallen by more than half, and, per the Washington Post, overall seizures at the border had fallen from 4 million pounds in 2009 to 1.5 million in 2015.
The current disconnect between federal marijuana policy and the ongoing reforms at the state level is untenable. Rather than revert to the tried and failed prohibitionist approach, it’s time for Congress to codify the current ad hoc federalism of Obama’s second term and give the states and their burgeoning marijuana industries the breathing room they need. In so doing, they will sap the strength of the cartels, create jobs, and allow law enforcement to turn its attention to more important work.
Dan Spragens is a criminal justice reform intern at Reason Foundation.