While on the campaign trail, Donald Trump repeatedly promised to leave the matter of cannabis legalization to the states. However, shortly after entering office, both he and Attorney General Jeff Sessions, who himself had promised the same during his confirmation hearing, pivoted on the issue and threatened a federal crackdown on both recreational and medical marijuana in states where it was legal. This led the freshman GOP senator from Colorado, Cory Gardner, to blockade any and all of the President's DOJ nominees until he received assurances that the feds would not interfere with state-regulated cannabis businesses.
Last Friday, Trump broke the standoff and promised to uphold his campaign pledge and leave cannabis legalization to individual states. But given how often the president pivots on well, just about every issue put before him, not to mention Sessions' zealousness in enforcing drug statutes that incarcerate and harm minorities, can we really trust that this administration will do right by medical marijuana patients and respect states' rights? Jonathan Havens, co-chair of the Cannabis Law Practice at Saul Ewing Arnstein & Lehr, is not convinced.
"I'm generally a bit skeptical," Havens told Engadget. "Interested, encouraged, but skeptical ... until there's actually a proposal that's out there, it's debated, it's voted out of Congress, and the president signed it into law."
The entire debacle started in January when Sessions announced that he was rescinding the Cole memo, along with three other memos. The memo informed US attorneys that, due to limited resources, the Justice Department would not enforce its federal prohibitions on cannabis in states that had "legalized marijuana in some form and ... implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana."
Fearing that federal enforcement would negatively affect the legal-weed industry in his state, Gardner declared a blockade on the administration's DOJ nominees. "Personally, I thought that was an interesting approach," Havens said. "Seemingly, the response from the White House recently is that worked."
"Whether a bill can get through both the Senate and the House, whether there's the votes for that, what's in the bill, and then whether the President actually follows through on his support are things that remain to be seen," Havens said.
The administration has a consistent track record of reversing its position on issues, which invites skepticism. He points out that the administration fully reversed its position on the Trans-Pacific Partnership deal in the course of just 24 hours earlier this year. Trump has reversed course on a number of issues, from transexuals serving in the military to granting Dreamers amnesty. What's more, Trump's position on cannabis is running counter to his attorney general's.
What this bill would even look like -- and how it would navigate the tensions between states' rights and federal enforcement -- remains a mystery. On one hand, it could simply be a standalone bill in the same vein as the Rohrabacher-Blumenauer Amendment. This amendment was introduced in a 2001 piece of legislation and voted into law as part of the 2014 Omnibus package. It prohibits the Justice Department from spending federal funds to interfere with states implementing medical-marijuana laws. That is, it says that the DOJ bill can't prosecute people who are in compliance with state law.
Banking regulations are a major roadblock for the cannabis industry. Banks must already follow a litany of regulations to ensure that depositors aren't, say, trying to launder illegal drug money. And for cannabis-related businesses, the regulations are even more unforgiving. This has resulted in a significant shortage of banks willing to do business with cannabis companies, with usually only one or two state-level banks available.