After winning big at the polls only 10 days ago, backers of marijuana legalization fear their movement took a major hit Friday when President-elect Donald Trump chose Alabama Republican Sen. Jeff Sessions, a staunch legalization opponent, as his attorney general.
At a Senate hearing in April, Sessions called marijuana “dangerous” and said that “good people don’t smoke marijuana.”
And in a speech on the Senate floor earlier this year, Sessions criticized President Barack Obama for not being tough enough on marijuana, saying the U.S. could be at the beginning of “another surge in drug use like we saw in the ’60s and ’70s.”
“You have to have leadership from Washington,” Sessions said. “You can’t have the president of the United States of America talking about marijuana like it is no different than taking a drink. . . . It is different. And you are sending a message to young people that there is no danger in this process. It is false that marijuana use doesn’t lead people to more drug use. It is already causing a disturbance in the states that have made it legal. I think we need to be careful about this.”
The possibility of Sessions becoming the nation’s top law enforcement official promises to set off a hot debate over the rights of states to operate without federal interference.
Aaron Smith, executive director of the National Cannabis Industry Association, said that Sessions “has long advocated for state sovereignty” and that he needs to ensure that the wishes of state voters are respected. After last week’s election, more than 60 percent of Americans now live in states that have approved either medical or recreational marijuana, or both.
“I believe that President-elect Trump is someone who has a high regard for the 10th Amendment and states’ rights,” said Derek Peterson, chief executive officer of Terra Tech, a publicly traded cannabis company in California.
Sessions, however, is another matter.
Aaron Herzberg, partner and general counsel of Calcann Holdings, LLC, a California medical marijuana real estate company, called Sessions “the worst pick that Trump could have made” and warned that marijuana legalization in states such as California, Florida and Washington “may be in serious jeopardy” if Sessions is confirmed by the U.S. Senate.
“It appears that he is intent on rolling back policy to the 1980s Nancy Reagan’s ‘just say no’ days,” Herzberg said.
Sessions received an “F” on the 2016 congressional scorecard released by the National Organization for the Reform of Marijuana Laws, a pro-legalization group.
Erik Altieri, the group’s executive director, called Sessions “a militant marijuana prohibitionist” and said his nomination “should send a chill down the spine of the majority of Americans who support marijuana law reform.”
While no one’s certain exactly what Sessions would do as attorney general, his nomination is clearly good news for opponents of legalization.
“Well, let’s just say that if I had marijuana stocks right now, I’d be shorting them,” said Kevin Sabet, president of the anti-legalization group Smart Approaches to Marijuana. “This is a man who we know is staunchly anti-legalization. There’s no way around that. Things are about to get interesting.”
Tom Angell, chairman of Marijuana Majority, a pro-legalization group, said the new administration “would do well to take a look at the polling data on this issue before deciding what to do.”
The latest Gallup Poll shows that 60 percent, a record high number of Americans, back legalization. Last week, voters in California, Nevada, Massachusetts and Maine approved the recreational use of marijuana, doubling a list that already included Alaska, Colorado, Oregon and Washington. In addition, 28 states now allow the use of pot for medical reasons.
Marijuana backers can also pitch the industry as a jobs issue, with the industry expected to have a market value of nearly $22 billion by 2020. So far, marijuana sales have resulted in big business for both Washington state and Colorado, the two states that first legalized recreational marijuana. In 2015, licensed stores in Colorado sold $996 million worth of recreational and medical marijuana. And in Washington state, marijuana sales hit a milestone in the first three months of 2016, surpassing sales of hard liquor for the first time.
“While the pick certainly isn’t good news for marijuana reform, I’m still hopeful the new administration will realize that any crackdown against broadly popular laws in a growing number of states would create huge political problems they don’t need,” Angell said.
The big question is who will call the shots in the Trump administration. During the presidential campaign, Trump followed Obama’s lead in arguing that legalization should be left to the states.
“It would certainly be controversial if Senator Sessions completely defied the president who appointed him,” said Mason Tvert, spokesman for the pro-legalization group Marijuana Policy Project.
But with federal law superseding any state law, Sessions would have broad power to shut down all marijuana operations in the country.
All he’d have to do is enforce the federal law that bans pot and lists it as a Schedule 1 drug, similar to LSD and heroin, with absolutely no medical value.
Obama’s Justice Department declined to enforce the law and allowed the states to proceed with legalization, so long as they promised to do a good job policing themselves.
Mark Kleiman, who served as Washington state’s top pot consultant after voters legalized the drug in 2012, said earlier this year that a Trump administration “could shut down the legal cannabis industry everywhere in the country with the stroke of a pen.”
“All you have to do is take a list of the state-licensed cannabis growers and sellers into federal district court and say, ‘Your Honor, here are the people who have applied for and been given licenses to commit federal felonies,’ ’’ said Kleiman, who’s now a professor at New York University’s Marron Institute of Urban Management.
Democratic Rep. Earl Blumenauer of Oregon, one of the top supporters of full-scale legalization in Congress, said the Senate should “do its job” by rejecting Sessions and that Trump should allow states to proceed with legalization. He said “the thought of Jeff Sessions at the helm of our justice system is deeply disturbing.”
Noting that legalization has been embraced by voters “in red and blue states alike,” Blumenauer said: “I am hopeful that the next administration, regardless of the Attorney General’s personal feelings, will respect the 10th amendment and states’ rights to set their own policy in regards to cannabis.”
Sessions has often touted the rights of states to operate without federal interference.
In 1998, for example, he argued that the federal government should not allow Indian casinos to open in states where they’re illegal. Sessions said that states, not federal bureaucrats, should have the final say in the location of casinos.
While marijuana backers called last week’s legalization votes historic, with some saying it represented a tipping point in the drive toward national legalization, Friday’s news seemed to change everything.
“It could be really bad news, if we don’t fight back,” said Steph Sherer, executive director of Americans For Safe Access, a group that promotes medical marijuana.