For marijuana legalization advocates, election night brought a lot of good news: Maine, Massachusetts, Nevada and California all legalized the drug for recreational purposes, plus voters approved medical marijuana measures in Florida, Arkansas and North Dakota and relaxed restrictions on a medical pot law already in effect in Montana. Arizona was the only state to vote down a marijuana initiative, and it was defeated by a relatively slim margin.
The spate of victories was the cherry on top of several years of progress on issues like sentencing reform, civil asset forfeiture reform, clemency and harm-reduction.
“We’ve been working for years or decades on all these reforms. And we’re finally feeling, especially these last two or three years of the Obama administration, that oh my God, things are actually moving forward,” says Ethan Nadelmann, who founded the Drug Policy Alliance in 2000 and one of the foremost experts on drug policy efforts underway around the country.
The one major curveball of the evening was, of course, Donald Trump winning the presidency. “Hillary looked like she was going to be a continuation of the Obama policies on the stuff that we work on,” Nadelmann tells Rolling Stone. So what will happen to the movement with Trump and his administration in power?
Just how devastating President Trump will be for the drug policy reform community was a subject of some debate in the days immediately following his surprise win. On the rare occasion Trump has addressed the issue, he’s expressed support for medical marijuana and, on the issue of legalization more broadly, he’s said he thinks “we should leave it up to the states.”
“Twenty-odd years ago, when he was asked what he thought, he said we should legalize all drugs,” Nadelmann says. “We know that, personally, he appears to be a teetotaler. He doesn’t even drink, and may never have even used marijuana. On the other hand, he’s obviously operated in New York, or he’s been in the entertainment world to some extent, so he has to be comfortable around people who have used drugs recreationally. He does have a personal experience, as Bill Clinton did, with a sibling who has struggled with drug addiction.”
But the people Trump almost immediately started installing around himself inspire far less optimism.
A “Drug War Dinosaur” at the Justice Department
First there was Trump’s inauguration committee, which included two names familiar to legalization advocates: Sheldon Adelson and Mel Sembler, two of the biggest donors to campaigns to block medical marijuana and marijuana legalization, according to Nadelmann.
The news that Trump intended to nominate Alabama Sen. Jeff Sessions for attorney general broke a few day later. “Sessions’ nomination has definitely put a scare into both the marijuana reform community and the marijuana industry – at least the small percentage who are politically conscious and aware,” Nadelmann says. Arguably only Rudy Giuliani would be a worse choice from the perspective of groups working to advance sensible drug policy, which in addition to DPA include the Marijuana Policy Project and National Organization for the Reform of Marijuana Laws.
Sessions famously said in the Eighties that he thought the KKK “were OK until I found out they smoked pot,” and his legislative record bore out that contempt for drugs and drug users. “Given what a hard-liner and how terrible he has been on so many [issues] – marijuana, certainly, but [also] sentencing reform, forfeiture reform, a whole league of other issues we work on – [Sessions] just looks terrible” for AG, Nadelmann says. “Almost the only good thing we can track down that he did was when he helped with the crack powder sentencing reform in Congress back in 2010.”
Having an attorney general who is generally hostile to drug policy reform can have a huge, if indirect, impact across the country. The nation’s chief law enforcement officer has wide latitude to influence policy through appointments to a range of jobs they help oversee. They’re in charge of selecting the head of the DOJ’s criminal division, have a say in who will be made a U.S. attorney and help choose federal judges.
“If you’re appointing a whole lot of highly aggressive right-wing prosecutors as U.S. attorneys, that means you’re significantly increasing the possibility that these guys are going to be much more aggressive,” Nadelmann says. “It also means that Sessions can reject the Cole Memorandum – the August 2013 memorandum which gave Colorado and Washington a qualified green light to proceed. Or they could even keep the memorandum in place, but begin to interpret it very, very strictly.”
Rolling Back Progress in Congress
On November 8th, Republicans also managed to hang on to their control over the Senate. Coupled with a Sessions Justice Department, that majority will probably thwart incremental progress in Congress on legislation like the CARERS Act (which would resolve issues preventing legal marijuana businesses from filing taxes and using the banking system), the Rohrabacher Amendment (which prohibits the Justice Department from spending any money to go after medical marijuana in the states where it is legal), and the McClintock Bill (which would do the same, but for any states that have passed legalization).
The CARERS Act is already stalled in Congress, and though the McClintock Bill got surprisingly close to passing, Nadelmann says the outlook is not good for it or the Rohrabacher Amendment. “If that’s not renewed, that’s going to put a real scare into the marijuana policy reform community,” he says.
“With Trump in the White House and Sessions in the Justice Department, I think it’s hard to be optimistic,” Nadelmann says. “The chances of positive marijuana reform legislation coming out [of Congress] and becoming law has diminished at this point.”
Smarting for a Confirmation Fight
Sessions still needs to be confirmed, of course, and groups like the Drug Policy Alliance are gearing up for a fight. “We’re going to do everything possible to block his nomination,” Nadelmann says. But the group doesn’t have a lot of reason to be optimistic it will prevail. “We know it’s going to be tough because there are key people like Rand Paul, or [Jeff] Flake in Arizona, or [Susan] Collins in Maine, who [one would think] would be put off by some of this highly aggressive stuff [but who] have already indicated that they’re going to vote for Sessions – in part out of the tradition of senatorial courtesy, in part because Sessions is generally liked by his colleagues.”
If they can’t block his nomination, groups like Nadelmann’s will at least try to “extract some assurances about what he will or won’t do as attorney general” during the confirmation process.
Even if they succeed at defeating Sessions – he was rejected by the Senate once before, after all – he’s just one of several Trump appointees who could cause problems for the drug policy reform movement.
Questions About the Cabinet
The prospect of Tom Price heading the Department of Health and Human Services, for instance, is troubling because he’s voted against virtually every drug policy reform bill out there, including medical marijuana provisions supported by other Republicans, says Nadelmann. HHS has oversight of the Substance Abuse and Mental Health Services Administration – “the ones who have ultimately some say over funding of research in this area.”
For drug czar, several dispiriting names have been put forward, including Florida Attorney General Pam Bondi, who dropped an investigation into Trump University after she accepted a $25,000 campaign donation from Trump. “That would be pretty bad, given the position she’s taken [and] the role she’s played as AG in Florida,” says Nadelmann. “Some of the other names who’ve been bandied about have also looked pretty bad.”
The contrast will be stark when Trump’s selection is compared with the current czar, Michael Botticelli, who, Nadelmann says, “in the last couple years has been dramatically better than any of his predecessors on a whole range of issues, including being openly supportive of harm reduction, needle exchange, overdose prevention, holding drug courts accountable to public health standards, a range of his rhetoric.
“But we now have the possibility that Trump could go back to the old days of having a Drug War rhetoritician in that job,” he says.
Even in agencies you wouldn’t imagine would have much impact – Housing and Urban Development, for example – a hostility toward evidence-based drug policy could create real problems. “How they handle the issue of drugs in federally funded housing becomes an issue, so that’s another place where the federal government could either be helpful … or aggressively harmful,” Nadelmann says.
Holding Ground at the State Level
Even if the federal outlook is relatively grim, reform advocates could continue to see progress at the state level, especially in Democratic enclaves like New York, New Jersey, New Mexico, Colorado, California and Washington, D.C., Nadelmann says. “Sentencing reform, bail reform, parole reform, decriminalization of marijuana, to some extent civil asset forfeiture reform, how you allocate funding between treatment and prevention versus law enforcement, some big chuck of harm reduction funding, from needle exchange to overdose prevention: a lot of that stuff can continue to move forward and will continue to move forward.”
What will get really dicey is when state and federal policy are at odds with one another. “That’s really where the federal government can mess up things at the state level. And I think that especially plays out on the issue of the legal regulation of … marijuana,” Nadelmann says. “And that’s going to be a very complicated issue.”
All that said, Nadelmann thinks the legal marijuana industry is a genie that can’t be completely forced back into the bottle. “The fact that this [industry] is already producing tens of thousands, if not hundreds of thousands, of legal tax-paying jobs, the fact that it’s now a legal industry worth many billions of dollars, the fact that it’s already bringing in hundreds of millions of dollars in tax revenue for state governments – all of those are rational reasons for why a Trump administration should have a fairly hands-off approach. But that assumes that they’re willing to let rational considerations trump the old Drug War rhetoric.”
One glimmer of hope for legalization advocates comes straight from Trump’s inner circle: Some hope Peter Thiel, Trump’s outspoken ally in Silicon Valley, could influence the incoming president’s thinking in a positive way. Thiel’s Founders Fund has invested millions in Privateer, one of the biggest players in the legal marijuana market. And, according to Nadelmann, Thiel isn’t the only one who has both Trump’s ear and an interest in protecting the legal marijuana market.
“When I look around the country and see the number of people investing in the marijuana industry who have high-level Republican connections … it means that even though marijuana reform has been disproportionately advanced and pushed by Democrats, and even though Democrats are much more likely to vote in favor than Republicans, the fact of the matter is that you have a significant and growing minority of Republicans who are supportive of marijuana legalization,” Nadelman says. “And also quite a growing number of individuals who are invested in the industry.”