Is the Trump Administration Set to Crack Down on Cannabis Sales?

The headlines after Sean Spicer’s press gaggle Thursday seemed scary for proponents of cannabis legalization. Here’s CNN: White House: Feds will step up marijuana law enforcement. And here’s the LA Times: Trump administration signals a possible crackdown on states over marijuana.

There’s substantially less to this story than meets the eye. Spicer didn’t really say very much; Spicer probably doesn’t know very much; the correlation between what Spicer says and the truth isn’t especially great; and there are strong reasons to doubt that a “crackdown” is actually feasible. In addition, the latest poll shows 60 percent support for legalization, making cannabis substantially more popular than Donald Trump. And neither Trump’s ethno-nationalist base, nor the mass of mainstream suburban Republicans, has the sort of passion for fighting pot relative to issues such as abortion and guns. That sort of anti-pot passion was common on the Right in the “Just Say No” era, but that was long ago. So I’d expect to see things going along pretty much as they have been. Unfortunately, that’s not an especially good outcome. We could do better.

Here (edited for continuity) is what Spicer actually said:

Q: I have a question on medical marijuana. Our state voters passed a medical marijuana amendment in November. Now we’re in conflict with federal law, as many other states are. The Obama administration kind of chose not to strictly enforce those federal marijuana laws. My question to you is: With Jeff Sessions over at the Department of Justice as AG, what’s going to be the Trump administration’s position on marijuana legalization where it’s in a state-federal conflict like this?

SPICER:  Thanks, Roby. There’s two distinct issues here: medical marijuana and recreational marijuana.

I think medical marijuana, I’ve said before that the President understands the pain and suffering that many people go through who are facing especially terminal diseases and the comfort that some of these drugs, including medical marijuana, can bring to them.  And that’s one that Congress, through a rider in 2011 — looking for a little help — I think put in an appropriations bill saying the Department of Justice wouldn’t be funded to go after those folks.

There is a big difference between that and recreational marijuana. And I think that when you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing that we should be doing is encouraging people.  There is still a federal law that we need to abide by in terms of the medical — when it comes to recreational marijuana and other drugs of that nature.

So I think there’s a big difference between medical marijuana, which states have a — the states where it’s allowed, in accordance with the appropriations rider, have set forth a process to administer and regulate that usage, versus recreational marijuana. That’s a very, very different subject.

Q: Sean, I just want to follow up. I want to clarify, make sure I understand what you said. You said, you will see greater enforcement of it?

SPICER: I would refer you to the Department of Justice —

Q: But you said, you said there will be greater enforcement.

SPICER: No, no. I know. I know what I — I think — then that’s what I said. But I think the Department of Justice is the lead on that.  It is something that you should follow up with them, but I believe that they are going to continue to enforce the laws on the books with respect to recreational marijuana versus —

And that’s it. Not exactly a detailed policy prescription. And of course “continue to enforce the laws on the books” is not quite the same as “tear up the Cole Memorandum and crack down on state-regulated sale of cannabis.” Despite the Republican rhetoric, it’s not entirely clear what it means to “enforce the law on the books.” Yes, it’s true that an appropriations rider tells the Justice Department it can’t spend money to shut down state-regulated medical marijuana systems, but that doesn’t change the underlying criminal law, which forbids the production, sale, or use of cannabis for any reason, and does not recognize any medical use for the plant. And the underlying law includes a directive to the Attorney General to “cooperate with local, State, tribal, and Federal agencies concerning traffic in controlled substances.” It’s hard to see how destroying state regulatory systems would constitute “cooperation.”

Still, the Justice Department could, if it wanted to, destroy those systems at relatively low cost. The Supremacy Clause means that state-level legalization does not over-ride federal prohibition; there is, strictly speaking, no such thing as “legal marijuana” in the United States other than for research. In the states that allow sale without a medical recommendation, growers, processors, and retailers all need to apply for state licenses. Since those applications demonstrate the intention of doing things that are felonies under federal law, the U.S. Attorney in each district could carry a pile of applications (available as public records or by subpoena from the state) into federal district court and get an injunction against each applicant from doing any of the things the license allows. Those orders would be enforceable using the contempt power, without the complicated machinery of the criminal law.

That would put an end to taxed and regulated sales. But of course it wouldn’t do anything about the untaxed and unregulated sales – or increased sales of “medical marijuana” for non-medical use – certain to replace them. It seems hard to believe that state and local police in the states whose voters chose to legalize would be enthusiastic about arresting cannabis growers and dealers. And – the crucial point – the federal government, despite its awesome legal powers, doesn’t have the capacity to enforce the drug laws without state and local help; 4000 DEA agents can’t do the job of half a million state and local cops. The Obama Administration didn’t decide to acquiesce in the Colorado and Washington legalizations out of any enthusiasm for commercial cannabis sales; they were just obeying the first law of public administration: “Don’t get in the way of the inevitable.”

Even the fairly modest effort required to eliminate the state-regulated markets would necessarily come at the expense of other drug enforcement efforts, including those against the opioids. It’s not clear from Spicer’s comments whether he meant to imply that cannabis is a “gateway” to opioid use or whether he was just using the opioid crisis to illustrate the risks of substance abuse, but as an empirical matter cannabis appears to substitute for opioids, so cracking down on cannabis to deal with the opioid crisis would be precisely backwards.

Cannabis use disorder is a real problem, and it has been growing rapidly for the past quarter-century. There are now about 8 million self-reported daily or near-daily users – about 40 percent of all past-month users – and about half of them appear (again, by their own report) to meet the diagnostic criteria: using more often and in greater quantity than they intend, trying and failing to cut back or quit, finding that cannabis use interferes with their other goals and responsibilities and causes conflict with people they care about. That massive growth in heavy use has taken place as the effective price of a stoned hour has fallen drastically, because the price of pot has been approximately constant while its content of THC – the primary intoxicant in cannabis – has soared. That trend existed before state-level legalization, and it is not now confined to legalization states, but competitive pressures have begun to force prices down dramatically in Colorado and Washington. Taxes based on retail price – as opposed to taxes based on THC content – can’t do much to control that trend, and the state-to-state smuggling that already plagues the cigarette market will be a much bigger problem for cannabis.

Consider the math: The $8 tax difference between a pack of cigarettes in New York City and that same pack in Virginia supports a vigorous smuggling business. A pack of cigarettes weighs just about one ounce. The retail price of an ounce of cannabis at state-licensed shops averages about $180. So if one state were to tax that ounce at 20 percent of retail while another charged only 10 percent, that differential would be ample to support illegal smuggling.

Cannabis prohibition is now broken beyond repair; no one really wants to mount the sort of enforcement effort that would be required to force today’s $40 billion-per-year genie back into its bottle. State-by-state legalization is a formula for chaos. So we need changes in federal law that accommodate the voters’ preference for legal pot while preventing both a price collapse leading to a further massive increase in problem use and the development of an interstate smuggling problem. This is a complicated problem, but far from an insoluble one. I’ve suggested that Congress formalize the current situation by allowing the Justice Department to issue “cannabis policy waivers” to states that want to legalize, making anything that conforms with the laws of those states legal under federal law. The standards for issuing such waivers could include, for example, establishing taxes or production restrictions to keep prices from falling, preventing aggressive marketing, and requiring that retail cannabis sellers be trained in substance abuse prevention.

That’s not the only serious idea on the table. There’s more than one way to skin this cat. But doing any of them successfully would require paying careful attention to crucial details, with the help of experts. Unfortunately, attention, details, and experts don’t seem to be much in favor under President “I-alone-can-fix-it.”

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.