Marijuana reforms now exist in 29 states but what does this mean if it's still illegal at the federal level?

For many people, 2016 could be the year that marijuana prohibition finally ends in the U.S. Following ballot measures passed during the election, 29 states plus the District of Columbia have now passed legislation legalizing marijuana in some form, with eight states (Alaska, Colorado, Washington, Maine, California, Nevada, Oregon, and Massachusetts) having legalized recreational marijuana.

Cannabis supporters compare marijuana prohibition and the marijuana legalization movement to another prohibition movement 85 years ago with alcohol. The sale of alcohol became legal again in 1933 with the ratification of the Twenty-first Amendment.  Pressure from consumers, sellers, producers, and law enforcement agencies, who said it was impossible to stop what people wanted, were finally heard after 13 years of prohibition.

The battle to make end marijuana prohibition has gone on longer — ironic considering this is a plant — but similarly advocates — with the addition of the alternative health industry — have stepped up pressure on legislators to legalize sales.

However, marijuana prohibition is still going strong at a federal level as a Schedule 1 substance, which according to the Drug Enforcement Administration (DEA) means that the drug has a high potential for abuse, up there with LSD and heroin. It also means that it is not currently accepted as a medical treatment in the U.S, and that there is a lack of accepted safety for use of the drug under medical supervision. So as far as the federal government is concerned, all these state approved medical and recreational programs are operating illegally.

This combined with the fact that a highly conservative Trump administration is about to take hold of the White House, means that there could be a power struggle between a conservative government and the more liberal leaning states; not to mention how a conservative Supreme Court would interpret the situation if a legal battle ensued. So is this the end for the legalization movement for the next four years? Or is there simply too much momentum for the federal government to put the brakes on at this point?

Trump’s Position on Marijuana and Marijuana Prohibition

Let’s start by trying to clarify Trump’s position on legal marijuana. If you go all the way back to a Miami Herald article from 1990, Trump had a surprisingly progressive view of the “War on Drugs

“We’re losing badly the War on Drugs. You have to legalize drugs to win that war. You have to take the profit away from these drug czars.” 

However, fast forward to the 2016 election race, and Trump’s stance has shifted in a conservative direction – though it could well be in order to solidify his support with the right wing. When on the campaign trail, he was sketchy about his view of recreational marijuana, often dodging questions posed on the issue. Yet, when asked about medical marijuana, he was much more resolute in his position. At a political rally in Nevada back in October 2015, Trump seemed to be in favor of state decisions:

“In terms of marijuana and legalization, I think that should be a state issue, state-by-state … I think medical should happen – right? Don’t we agree? I think so. And then I really believe we should leave it up to the states.”

Whilst he did go on to question Colorado’s recreational legalization, he adopted the same position as most in the federal government, a wait and see approach to Colorado’s program.

“I love Colorado and the people are great, but there’s a question as to how it’s all working out there, you know? That’s not going exactly trouble-free. So I really think that we should study Colorado, see what’s happening.”

The Midwest state seems to have become the country’s guinea pig for progressive policies like recreational marijuana, as well as assisted suicide, and potentially single payer healthcare in the near future.

How Has the Marijuana Industry Reacted?

To get a better grasp on how the marijuana industry is reacting to Trump’s Presidency, I spoke to J. Peters, the CEO of the Canadian marijuana lifestyle outlet True Dope. I wanted to see what an industry insider was thinking in the wake of Trump’s election – especially since there has been suggestions that Trump’s presidency, and the potential stagnation of the marijuana industry, could provide huge benefits for marijuana-based startups in Canada.

From what I understand, Trump is a firm believer in letting individual states have a fair amount of autonomy with issues like cannabis legalization,” Peters expressed. “I believe that although the new administration may not look favorably upon legalization, they will think long and hard before going against the will of the people in states that have already voted for legalization.”

All of this suggests that Trump is unlikely to stand in the way of such a popular policy (with 60 percent of Americans now in favor of legalization), especially given the traditional Republican rhetoric of small government and greater power for individual states. As a result, the marijuana industry is not too concerned about Trump’s impact on their business at this stage; a spokesman for the Marijuana Policy Project said that they didn’t plan to change their strategy and are simply going to wait and see what happens.

“I wouldn’t say President Trump is necessarily bad for the cannabis movement in North America or globally, mainly because there have been no clues on the direction they will take. Whether or not it’s a good thing also remains to be seen, although past Republican administrations have typically been against legalization.” Peters voiced. “The hope is that the widespread acceptance of marijuana as a legitimate medicine and recreational drug expands to all modern governments, and it is no longer a partisan issue.”

Trump’s Attorney General Appointment

The real fear for the industry lies in the appointments Trump could make to his cabinet. Chris Christie was quoted in July 2015 as saying:

“If you’re getting high in Colorado today, enjoy it. As of January 2017, I will enforce the federal laws.”

Political candidate Bill Maher and longtime cannabis user is surely appalled.

He had been on the shortlist for attorney general until his recent removal from Trump’s transition team, and whether he will hold any future position in the Trump administration seems unclear. However, Rudy Giuliani is still on that shortlist. That’s the one man who, according to Marijuana Majority Chairman Tom Angell, oversaw the transformation of New York City into the marijuana arrest capital.

With Trump’s administration unlikely to interfere with state regulated marijuana industry, and Canada moving toward legalization recreationally, we’ll possibly even see marijuana trade between the two countries in the next few years.

“The one benefit that Canadian legalization has over the U.S. is that we have the change happening at a federal level,” explains Peters. “With cohesion from province to province and country wide, business, medical practitioners and users alike don’t have to worry about legal red tape like they do in the states, which means that we have more options to grow the sector. The American economy is obviously much larger than that of Canada, however, with the lack of federal approval and a blanket legalization like we hope to achieve in Canada within the next two years, it truly is up to each state, and that causes a big headache in terms of growing the industry on a national or even international level.”

Legal and Financial Safeguards

Trump may, in fact, turn out to be in favor of recreational cannabis for one reason that I feel many commentators have failed to consider. As a businessman, and a republican who wants to cut taxes and embark upon mass infrastructure spending, the tax revenue that could be generated by taxing recreational marijuana, nationwide, is enormous.

As of September 2015, weed in Colorado was generating almost double the amount of tax revenue compared to alcohol ($70 million to $42 million). Similarly, in Washington, the first year of legalization racked up an incredible $82 million in tax revenue. A 2012 study, backed by 300 economists and three Nobel Prize winners, found that nationwide legalization could generate upwards of $13 billion in tax revenue – a study that was conducted pre-legalization in Colorado and Washington.

In a recent report by the Tax Foundation, it was estimated that nationwide legalization could in fact produce $28 billion in tax revenue for federal, state, and local governments. Trump may need to turn to marijuana to help fund his administration’s plans, especially if they find themselves running at a tax deficit as has been predicted.

Ultimately, there are two legal safeguards that the States can rely upon to defend their marijuana industries: the Hinchey-Rohrabacher Amendment and the Cole Memo. The Hinchey-Rohrabacher Amendment prevents the Justice Department from using federal funds to enforce federal prohibition laws in states where medical marijuana has been legalized; and the Cole Memo protects States that legalize recreational and, or medical marijuana from federal government interference (provided that they follow a series of federal guidelines).

While marijuana remains a schedule one substance, there is very little to suggest that any real threat to the legalization movement will be posed by the Trump administration. His hands off rhetoric is a welcomed change from his generally inflammatory campaign strategy and should give hope to those who are campaigning for legalization. So, it seems this is not the end of the line for weed; thankfully, it is only the beginning.

Josh Hamilton is an aspiring journalist from Belfast, Northern Ireland, living in London, Ontario. Lover of music, politics, tech and life.

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