Given that many of the Democratic Party candidates have expressed support for marijuana legalization, a Democratic victory in 2020 seems likely to increase the chances for significant reform at the federal level.  But what about a Republican victory?  Although the Republicans have held the White House since 2016, the answer to this question is a mystery, due largely to the inconsistent and constantly shifting views of the President and his administration and the ambiguous positions of key Republican leaders in the Senate. 

In 2015, while campaigning, Trump characterized Colorado’s law legalizing recreational marijuana as “bad.”  Once elected, he appointed as Attorney General Jeff Sessions, who rescinded the Cole Memorandum and committed the Department of Justice to aggressive enforcement of federal narcotics laws, including those against marijuana.  However, in June 2018, Trump said that he would “probably” support the STATES Act, which would essentially immunize state-compliant businesses from federal prosecution.  Senator Cory Gardner of Colorado, one of the co-sponsors of the STATES Act, claimed that Trump had also promised him that he would support the legislation.  When Gardner re-introduced the STATES Act in 2019, he again claimed that Trump said that he would support it and also said that Trump had opposed Sessions’ decision to rescind the Cole Memorandum.  Sessions’ replacement as Attorney General, William Barr, essentially committed to re-instituting the Cole Memorandum when he stated in his confirmation hearing “To the extent that people are complying with state laws in distribution and production and so forth, we’re not going to go after that.” 

But reform advocates should not take too much comfort from these statements.  In February, when signing a federal spending bill that prohibits DOJ from using federal funds to prosecute state-compliant medical businesses, President Trump appeared to resuscitate the Sessions policy and implied that he could still order DOJ to prosecute state-compliant activity.  As he stated “[the bill] provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories … I will treat this provision consistent with the President’s constitutional responsibility to faithfully execute the laws of the United States.”  At his confirmation hearing, Attorney General Barr also said that he is personally opposed to marijuana legalization. 

Many within DOJ also seem committed to aggressive enforcement.  For example, US Attorney for the Southern District of West Virginia Mike Stuart, a Trump appointee, has been vocal in opposing legalization, tweeting recently “Legalization & commercialization doesn’t mean problems from marijuana go away.  Problems only get bigger.”  Stuart also tweeted “Medicinal marijuana regimes are for medicinal purposes only as medical needs require.  Abuses of system will be dealt with the same way we deal with other drug dealers in existing medical system – Sternly and Toughly.”  The Drug Enforcement Administration, which is also part of DOJ, has also been vocal in publicizing the risks of marijuana.  For example, a recent tweet from DEA Headquarters stated “Marijuana use during teen years has been linked to disrupted connectivity between brain regions related to motivation and mood.”  A recent tweet from the DEA Los Angeles field office stated “Marijuana remains illegal throughout California and is extremely dangerous.  Schedule I controlled substance!!  Don’t end up in federal prison!”  The Wall Street Journal recently claimed that under President Trump the DOJ’s U.S. Trustee Program has been using the bankruptcy courts to impose the federal marijuana ban in states that have legalized marijuana, and Trump “began a concerted effort to uncover bankruptcy filers receiving income from marijuana and expel them from court.” 

Other branches of the Administration also seem committed to aggressive enforcement.  For example, on April 19, 2019, U.S. Citizen and Immigration Services (CIS) issued policy guidance clarifying that “violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character (GMC) for naturalization even where that conduct would not be an offense under state law.”

Of course, the future of cannabis reform under a Republican administration will also depend to a large extent on the composition of the Senate and the positions of key Republican Senators.  Here, too, things are unclear.  Although some Republican Senators, like Cory Gardner, have supported marijuana reform, others have been more equivocal.  As Gardner said of Mitch McConnell, “I think we still have more work to do with Sen. McConnell.  He got part way there with hemp [a reference to McConnell’s support of the de-criminalization of hemp in the 2018 Farm Bill], but he’s not exactly the bastion of libertarianism on this. ”  Similarly, Chairman of the Senate Judiciary Committee Lindsey Graham has also taken an ambiguous position.  For example, in a 2016 interview with Politico magazine, he stated “I am open-minded to the idea that the plant may have medical attributes that could help people …. I’m convinced that we should, as a nation, research the medical applications of the marijuana plant….It could be life-changing.  I just want to do it in a scientific way…and the current system doesn’t allow for the research that we need.”         

In short, the President’s public statements and the policies of his administration on marijuana legalization and enforcement appear to be shifting and inconsistent, defying easy characterization.  This makes predicting his future positions, and the consequences of his possible re-election for cannabis reform, reform extremely difficult, if not impossible.  Prediction is made even more difficult by the fact that many key Republican Senators have also refrained from taking clear positions.        

Correction: An earlier version of this post stated incorrectly that all Democratic Party candidates have expressed support for marijuana legalization.

Author

Tom Firestone is Co-Chair of the firm's North American Government Enforcement practice and is a member of the Firm's Global Compliance & Investigations Steering Committee. He represents clients in matters involving anti-corruption and the US Foreign Corrupt Practices Act (FCPA), internal investigations and transactional due diligence. He is also a member of the firm's Cannabis Review Committee and has advised clients on compliance issues related to cannabis.