3 Reasons Why Trump Might Hesitate to Go After Legal Pot

There's a lot of worry that the incoming president will try to reinstate reefer madness in states where pot is already legal.

Photo Credit: Creative Family / Shutterstock

The election of Donald Trump is sending chills down the spine of the nation's nascent marijuana industry. Could he and a Republican Congress try to roll back the clock and force federal pot prohibition down the throats of states that have, via the popular vote, gone down the path toward legalization?

Marijuana remains illegal under federal law, and Trump and the Congress could, in theory, try to put the genie back in the bottle. Undoing a Justice Department memorandum and failing to renew laws that ban the Justice Department from interfering in pot-legal states could open the door to a renewed, regressive federal offensive on reefer.

But is that actually going to happen? I don't think so, and here are three reasons why.

1. The feds can roll back legal marijuana regulation and taxation, but they can't roll back legal marijuana.

The federal government could make it impossible for states to tax and regulate the marijuana industry and could theoretically drive the industry back underground by reversing the Obama administration's Cole memorandum basically turning a blind federal eye to state-legal marijuana programs and by the Republican Congress refusing to extend laws that bar the use of federal funds to go after state-legal marijuana programs. But—and this is a huge but—the federal government cannot force the states to make marijuana illegal nor can it make them enforce federal marijuana prohibition.

Ponder what would happen if the feds clamped down on the states: The states could be enjoined or threatened into dismantling their marijuana regulation and taxation apparatuses, crippling marijuana businesses and hurting state coffers. But state laws allowing pot possession and personal cultivation would remain on the books. We would then have marijuana legalization without regulation or taxation, a real Wild West situation. And, of course, it would be up to the federal government to enforce federal marijuana laws in those states. The DEA doesn't have an army big enough to effectively do that.

Barring popular votes to overturn initiatives—not presidential diktats or congressional interference—marijuana is going to remain legal in the states that have voted for it, even if the feds try to go after pot businesses. And given that doing so would result in marijuana legalization without regulation, it seems unlikely that even the most dedicated drug warrior will want to go down that path.

2. Marijuana legalization is popular, more popular than Trump.

Legalization has won in every state where's it been on the ballot, with the exception this year of red-state Arizona, where a multi-million-dollar "no" campaign managed to barely defeat it. And it is an increasingly popular position nationwide, with public opinion polls the last couple of years consistently reporting majorities in favor. The latest Gallup poll, from October, has support at an all-time high of 60%, including 70% of independents, 67% of Democrats and even 42% of Republicans. Trump supporters undoubtedly include people who support marijuana legalization.

Donald Trump, on the other hand, didn't win a majority of the popular vote, even though he won the electoral college. According to the latest counts, he got 47.0% of the popular vote, while Hillary Clinton got 47.8%. Does a new president favored by less than half the voters want to take on an issue favored by well over half of them? Trump can choose where he expends his political capital, and if he chooses wisely, going after legal marijuana won't be a fight he picks.

3. Trump himself has said leave it to the states.

Okay, Trump said lots of things on the campaign trail, many of them contradictory. His positions are little more than sketches and he's hard to predict. But he has made clear statements about his position on marijuana legalization.

"I think it certainly has to be... a state decision," he told WWJ Newsradio 950 last March. "There seems to be certain health problems with it, and that would be certainly bothersome. I do like it... from a medical standpoint—it does do pretty good things. But from the other standpoint, I think that should be up to the states. Certainly, from a medical standpoint, a lot of people are liking it."

That position is precisely in line with the Obama administration's approach and would keep the status quo intact.

Trump is a teetotaler who has no use for alcohol, cigarettes or coffee, let alone marijuana, and he's shown an inclination to talk tough about drug dealers, but in the past—before he decided to run for president as a Republican—he also talked about how the war on drugs has failed and the only response is legalization. Don't expect Trump to emerge as the champion of drug legalization while in the White House, but do expect him to live up to his word on the campaign trail.

There has been much gnashing of teeth and rending of garments over the possibility that Trump will appoint a hardline anti-marijuana conservative as attorney general, and that an Attorney General Giuliani or Sessions could unleash the hounds of federal pot prohibition on the legal states. But attorneys general serve at the whim of their bosses, in this case, Trump. If Trump is not down with trying to restore federal pot prohibition in states that don't want it, his attorney general is not likely to go up against his boss.

This doesn't mean we should rest easy. There are gains to be defended and campaigns to be mounted to ensure that he doesn't try to interfere. Trump needs to know that he's in for a tough and futile battle if he goes after weed, but I suspect he knows that already, and he's got other battles to fight. 

Phillip Smith is editor of the AlterNet Drug Reporter and author of the Drug War Chronicle.

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