The Volokh Conspiracy
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A Possible Victory for Federalism and Marijuana Legalization
Donald Trump's deal with Senator Cory Gardner could pave the way for the effective elimination of the federal law banning marijuana in those states that have legalized pot under state law.
Earlier today, President Donald Trump apparently cut a deal with Colorado Republican Senator Cory Gardner that could lead to the effective end of federal marijuana prohibition throughout much of the country. In January, Attorney General Jeff Sessions ended an Obama-era policy that limited federal prosecution of marijuana user and distributors in states that have legalized pot under their own state laws. In retaliation, Gardner, who represents the first state that legalized recreational marijuana, held up Trump Administration nominees for Justice Department posts in order to pressure Sessions into reversing his decision. As reported by the Washington Post, Trump and Gardner have apparently made an agreement under which Gardner will let the nominations proceed and the administration will refrain from prosecuting marijuana sellers and users whose activities are legal under state law, and support legislation barring such enforcement permanently. As Gardner put it in a press release, "President Trump has assured me that he will support a federalism-based legislative solution to fix this states' rights issue once and for all."
This latter part of the deal is particularly important. If federal marijuana prosecutions in states that have legalized marijuana are banned by congressional legislation, the issue will no longer be a matter of executive discretion. At least when it comes to these states' marijuana markets, it would no longer matter much whether the attorney general is a committed drug warrior like Sessions or a more moderate figure.
Nine states and the District of Columbia have legalized recreational marijuana, and many more states that have legalized medical marijuana. States that have legalized recreational marijuana in recent years include such major jurisdictions as California, Colorado, Washington, and Massachusetts. Those figures are likely to keep growing, given recent trends in public opinion.
Allowing states to go their own way on marijuana legalization would be a major boost to efforts to curtail the War on Drugs, which inflicts enormous harm on American society. It would also be an important step towards limiting the scope of federal power, thereby making it easier for red and blue states to coexist in an era of severe polarization.
But celebration may yet turn out to be premature. Trump has a history of unreliabiility and it is not yet clear whether he will uphold his end of the bargain with Gardner. As Democratic Senator Ron Wyden (a supporter of marijuana legalization) put it on Twitter, this could be "another episode of @realDonaldTrump telling somebody whatever they want to hear, only to change directions later on." Jeff Sessions and other drug war hardliners in the administration might yet undermine the deal, just as anti-immigration hardliners in the White House scuttled Trump's seeming agreement to various deals on DACA. The War on Drugs is less central to Trump's political brand than opposition to immigration. During the 2016 campaign, Trump even indicated that marijuana legalization is an issue that should be left up to the states. On the other hand, a harsh federal marijuana policy would be consistent with Trump's broader "tough on crime" stance, and with his plans to ramp up the War on Drugs in other areas.
Even if Trump does not back out, it is not yet certain that Gardner's proposed legislation can get through Congress. It is highly likely that it could win a majority vote in both the Senate and House, given the support of the overwhelming majority of Democrats, and a good many Republicans. But it is at least questionable whether it can secure the support of a majority of the House GOP caucus. If it does not, lame-duck House Speaker Paul Ryan might apply the so-called "Hastert Rule," under which legislation cannot come to a vote unless it has the backing of a majority of the majority party - not just a majority of the House as a whole.
Nonetheless, today's developments are at least grounds for cautious optimism for legalization advocates. The fact that Trump is even seriously considering ending federal marijuana prohibition in a large part of the country is a step in the right direction.
