Editor's Note: This article originally appeared on The Fresh Toast on February 13, 2017.
With Jeff Sessions at the helm of the Justice Department, many in the marijuana industry and advocacy movements are openly wondering what the future holds for cannabis policy. Given that guidance issued by the Obama Justice Department holds much of the industry together and functional, the prospect of a drug warrior Attorney General scares some and bewilders others.
The reality is this: no one knows what marijuana policy will look like under the new administration. And if the past year has taught us anything about American politics, it is this: when it comes to Donald Trump, don’t lob predictions. In place of such ill-advised predictions, I will offer some items to follow to better understand the direction of marijuana policy.
All The Attorney General’s Men
While the Attorney General is a powerful actor in our system, he is only one part of Justice Department and drug policy leadership. Moving forward, it is equally important to get to know appointees to other key positions in the Justice Department. That includes the Deputy, Associate, and Assistant Attorneys General. Understanding their positions on marijuana, other drugs, federalism, etc. can help inform what future policy may look like.
In addition, the president’s nominees to be U.S. Attorneys will shed light on Trump-era drug policy. While U.S. Attorneys across the country can have an impact on marijuana policy specifically and drug policy broadly, whom the president selects for key jurisdictions like the District of Colorado, the Eastern and Western Districts of Washington, and the four districts in California, could signal how aggressive the administration intends to be on existing cannabis operations. If the federal prosecutors in those areas are drug warriors, it could present challenges for the marijuana industry and the states that are regulating adult-use marijuana.
Outside the Justice Department core, there are key presidential appointees who will have ample say in determining the Trump administration’s drug policy. The head of DEA (who will report to the Attorney General), the drug czar (the head of the White House Office of National Drug Control Policy), the FDA Administrator, the head of NIDA, and recently confirmed HHS Secretary Tom Price will each, individually and as members of the broader drug policy network, play key roles. As President Trump selects candidates for these positions, nominees’ backgrounds, histories, rhetoric, and (possible) voting records will be important to analyze. The manner in which these appointees agree or disagree with the Attorney General or prioritize different policies could enhance or hinder the federal government’s efforts to create challenges for the marijuana industry.
As I have noted in a previous column on The Fresh Toast, Jeff Sessions’ Senate record and prior rhetoric may not ultimately look like his record as Attorney General. Every Attorney General needs to make choices and set priorities when it comes to law enforcement. Sessions has the opportunity to crack down hard on the marijuana industry, keep the Cole memo-status quo, or find some middle ground.
It will be some time until we have a complete understanding of Sessions’ marijuana policy. In the interim, it will be important to monitor his public statements on this issue and the audiences to which he makes such statements. A speech to a group of police officers may sound much different than a press release or guidance memorandum on official DOJ letterhead. Their impact may differ dramatically, as well. While Sessions will be the nation’s top law enforcement official, it is important to remember he is a politician who holds one of the most political roles in government. The Attorney General can set or reset the status quo on some of the most controversial issues of the day. In that vein, he will give speeches and saber rattle on a variety of topics, but his actions will always be more meaningful than the musings of a career politician.
That is not to say that Sessions’ rhetoric is meaningless and you should ignore him at all costs. The words of an Attorney General can impact police chiefs, local prosecutors, advocacy organizations, civic groups, and the public at-large. The Attorney General can create environments, attitudes, and biases, as well as inject enthusiasm for certain enforcement approaches and actions at will. Such power certainly demands close monitoring, even if it means sifting through some political fluff.
Where Sessions’ words should be taken most seriously is in communications with those who serve beneath him—and that’s a lot of men (and women) in black. The Justice Department boasts a team nearly 120,000 strong, managing a budget of nearly $30 billion. What Sessions states in administrative memoranda or in speeches or statements to U.S. Attorneys, the FBI, DEA, and other divisions and agencies in the Department can have huge effects for drug policy. You may not believe everything Attorney General Sessions says, but if his subordinates do and they act accordingly, it will quickly and significantly affect what marijuana policy looks like.
The Trump Card: Delegated Power
One of the most important ways a cabinet member can flex his or her policy muscles happens when a president delegates decision making. Yes, cabinet members don’t make bold policy decisions without a White House signoff. But, in areas where a president just doesn’t give a damn, cabinet members (and the relevant White House policy council) become more influential.
There is a lot in the Attorney General’s portfolio that President Trump is keenly interested in. On issues like perception of police and especially immigration, the Attorney General will have to accommodate clear and strong presidential preferences.
On marijuana policy, the president’s views are not well-known. And this is not a knock on the president. In American politics, presidents tend to have two views: fiercely anti-marijuana or vague. By the closing days of his administration, Barack Obama had found a notably pro-marijuana reform position; yet, that was a destination reached after a slow, eight-year journey of vague statements.
President Trump appears to be much like his predecessor. On the campaign trail, Mr. Trump at times endorsed states’ rights and at other moments spoke like a teetotaler (which he is). It is thus unclear whether Trump will prioritize drug policy as a critical White House issue or whether he will allow his Attorney General (and the other appointees with a hand in drug policy) to have free rein. The latter should likely alarm the drug reform community.
Yet, there is another more likely scenario in which presidential priorities benefit the marijuana reform community indirectly. In this case, the president need not have strong or clear priorities that limit Jeff Sessions’ or other administration drug warriors’ ability to crack down on the marijuana industry. The president may, instead, have a strong interest in focusing drug enforcement efforts on the opioid crisis in the U.S. According to 2015 CDC data, 13 of the top 20 states in per capita, age-adjusted opioid overdose deaths were states Trump won in 2016. There is serious outcry in many states for government assistance to deal with this crisis. It is hurting middle America and rural America in significant ways. Those outcries are likely something that President Trump responds to.
Yes, government officials can walk and chew gum at the same time—but it’s not always easy. Policymaking, especially drug policy, is a very political process. As I have described in my recent book, presidents spent much of the 20th century scoring political points by politicizing, demonizing, and criminalizing marijuana production and use. Trump too has the ability to score political points by dealing with the opioid problem. Because of the magnitude of this crisis, a serious effort to take it on would divert tremendous drug policy and drug enforcement resources. Federal law enforcement is a fixed sum game: every dollar spent on immigration policy or on dealing with opioids is one dollar less being spent on marijuana enforcement.
To understand what the Attorney General—and other appointees–will do with marijuana policy, one must take a serious look at what Trump’s priorities are with regard to other drug, law enforcement, and DOJ policy areas. It is foolish to predict what Jeff Sessions will do at the helm of Justice; it’s much easier to make sure you find all the tea leaves and read them.