Mark Kleiman, professor of Public Policy at NYU/ Marron explains how the Trump administration could have a negative impact on the growing industry of legal marijuana.
Josh Barro: With the new administration coming in, there’s some question over what the justice department will do. The Federal government has, so far, taken a pretty hands-off approach to states that legalize even though marijuana is illegal under Federal law. Are you concerned about what the Federal government might do there? And what sort of mess would that create if the Federal government decided that it wanted to enforce laws against marijuana in states that have legalized?
Mark Kleiman: Well, it could create as much of a mess as the attorney general wanted to create. If the president held still for it. I mean, it’s pretty clear the attorney general, thinks that, or at least he said he thought, that the Obama administration was doing the wrong thing by acquiescing in these state license violations of Federal law. I assume that the career staff there is giving advice — and he may actually already know this — that they didn’t have much choice.
Barro: Why’s that?
Kleiman: Because there are 4,000 DEA agents worldwide. There are 500,000 state and local cops. If a state doesn’t want to enforce its cannabis laws, the Federal government really cannot step into those shoes. And, again this is hard Constitutional doctrine. The Federal government may not require a state to make something criminal or to help enforce safe Federal law.
So yeah, if … the justice department wanted to shut all the legal markets down, they could do that within weeks at very low resource cost. They go into the state regulatory agencies, they get all the license applications, which I think are public record, but if not, they can subpoena them, they take that pack of applications to the nearest US Federal District Court and say, “Your Honor. here are people who have signed an application for permission to commit a Federal felony. Please enjoin them from doing so.” That injunction issues without even hearing from a lawyer on the other side. And then you use the contempt power to enforce it.
So they could destroy the legal market overnight. But they’d just replace it with an illegal market. If Colorado and Washington reacted by repealing their cannabis laws, then instead of a taxed and regulated market, you’d have an untaxed and unregulated market.
And, yeah, you could, you could have the pleasure of sending some people to prison, but you couldn’t do anything about it. So my guess is, that’s the advice that the new attorney general will get from his staff, and that they will acquiesce as the Obama administration acquiesced in something they can’t stop.