Incoming administration could roll back states’ pot legalization
DENVER | Weed is winning in the polls, with the solid majority of Americans saying marijuana should be legal. But does that mean the federal government will let dozens of state pot experiments play out? Not by a long shot.
The government still has many means to slow or stop the marijuana train. And President-elect Donald Trump’s nomination of Alabama Sen. Jeff Sessions to be the next attorney general has raised fears that the next administration could crack down on weed-tolerant states 20 years after California became the first to legalize medical marijuana.
“We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized. It ought not to be minimized that it’s in fact a very real danger,” Mr. Sessions said during an April Senate hearing.
The Controlled Substances Act bans pot even for medical purposes. A closer look at some of the government’s options for enforcing it:
Take ’em to court: The government rarely invokes its authority to sue states, but it’s the quickest path to compliance. The Justice Department could file lawsuits on the grounds that state laws regulating pot are unconstitutional because they are pre-empted by federal law.
Something similar happened in 2010, when the Justice Department successfully sued Arizona to block an immigration law that conflicted with federal immigration law.
Federal courts also can compel action, not just block it, as in Kentucky last year, when a county clerk was ordered to issue marriage licenses to same-sex couples following a landmark U.S. Supreme Court ruling.
Twenty-eight states and Washington, D.C., allow marijuana for medical or recreational purposes. The government has yet to sue any of them.
Raid pot businesses: The government could avoid court entirely if it doesn’t mind a more expensive option: law enforcement raids.
The Drug Enforcement Administration retains the legal ability to shut down anyone selling or growing pot, but there has been no coordinated federal attempt to close pot producers in multiple states. The agency has said repeatedly that it does not have the resources to pursue ordinary pot users.
Any change in that approach would likely require more money from Congress, which just saw many of its constituents vote in favor of legalization. And a federal agency probably will not spend limited resources busting people growing pot for personal use, said John McKay, a former U.S. attorney in Washington state.
“Who is going to stop people from smoking pot in a residence in Denver? Federal agents?” he said. “They are going to stop doing terrorism investigations and start arresting people for pot? That, to me, is crazy.”
Financial hurdles: It’s the biggest complaint in the weed business: taxes.
Businesses selling marijuana cannot use tax breaks or incentives offered to other small businesses, and some of them say they pay 80 percent or more of every dollar on taxes and fees. They have limited access to banking because many financial institutions are leery of the paperwork they are required to file on clients working with marijuana.
Colorado officials tried last year to ease the
“We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized. It ought not to be minimized that it’s in fact a very real danger.” — Attorney general nominee Sen. Jeff Sessions, Alabama Republican
banking burden by setting up a special credit union to safely handle pot shops’ money, only to see the Federal Reserve Bank and federal courts block the effort.
As long as Congress and the new administration leave those hurdles in place, the marijuana business will grow haltingly. Voters may generally support pot legalization, but few have sympathy for a pot entrepreneur unable to become a multimillionaire because of banking obstacles.
Stricter regulations: Government officials who are skeptical of marijuana but also leery of going against public opinion can use regulation and red tape to slow commercial pot.
Legalization opponents frequently decry the strength of today’s marijuana, an argument that provides political cover for pot skeptics who once used the drug themselves and gives legalization opponents a backdoor route to blocking weed.