Sixty percent of Americans think marijuana should be legalized, but that support isn't easily distributed—most important, the man who has the most power when it comes to federal drug policy is not a fan of letting people light up. In February, Attorney General Jeff Sessions said that "states can pass whatever laws they choose" but maintained that the drug is nevertheless harmful. "My best view is that we don't need to be legalizing marijuana," he continued. He has made private assurances to a handful of Republican senators indicating he will not direct the Department of Justice to interfere with states that have legalized marijuana, but advocates are still nervous. They might very well have reason to be.
On Saturday, the Washington Post reported on Sessions's plan to undo much of the work of the Obama-era DOJ, which worked to reduce long sentences for prisoners with nonviolent drug charges. Significantly, Sessions recruited Steven H. Cook, a prosecutor and longtime drug war hardliner, to be a part of his team at the DOJ.
During the last few years, the war on drugs has come to be widely regarded as a massive failure. It unfairly targeted minorities and is in part responsible for the US prison population increasing 500 percent over the past 40 years. Many people, from liberals to small-government conservatives, think that locking up people for nonviolent pot offenses is morally wrong and insanely expensive—that sentiment is partially why more than two dozen states have legalized at least medical marijuana. But people like Cook and Sessions aren't necessarily part of that consensus. Last year on a panel, Cook said, "The federal criminal justice system simply is not broken. In fact, it's working exactly as designed," according to the Post.
So what happens if Sessions comes for weed? Firstly, remember that while states have legalized marijuana, it's still prohibited under federal law. In 2005, the Supreme Court ruled in __Gonzales v._ Raich_ that the federal government is allowed to criminalize producing and using homegrown marijuana. The interpretation of the 2005 ruling is still unclear though. Law professor Randy Barnett, who worked on the case, explained in a Washington Post op-ed, "In no way did [_Gonzales b. Raich_] say or even imply that Congress had the power to compel state legislatures to exercise their police power to criminalize the possession of marijuana, or to maintain their previous legislation criminalizing such behavior." While pro-cannabis activists were hopeful that the Supreme Court would hear another case regarding the cannabis legalization last year, perhaps clarifying that 2005 ruling, they declined, leaving the future of legal weed in further limbo.
Though Sessions hasn't announced what specific changes he plans to make about how the DOJ handles drug cases, Jeffrey Miron, a Harvard professor who is also the director of economics at the Cato Institute, told me that Sessions has a lot of power when it comes to interfering in states that have legalized weed.
"Sessions can direct federal resources from the DA and other agencies to target the medical marijuana dispensaries or the legal retail outlets in those states that have already medicalized and legalized it. More broadly, he could just carry out federal enforcement efforts against drug trafficking in any state," Miron explained. "In the most extreme case, they put them under arrest and prosecute them for violating the federal law. Less extreme, they simply tell them they have to close down and seizes their property, inventory and cash."
It's nevertheless difficult to imagine Sessions actually going after well-established dispensaries. Not only is legal weed popular, it's profitable—Colorado has raised more than $200 million in tax revenue from marijuana sales. The idea that marijuana isn't bad and shouldn't be illegal has gone mainstream in a way that would make a crackdown on weed seem even more anachronistic than some of the Trump administration's other policies, like that big border wall. Moreover, it's an issue of states' rights, a cause often championed by the right. The federal government interfering with state laws endorsed by the majority of voters would be at the very least be a PR disaster for Sessions and the Trump's administration in general.
The attorney general could simply come out and say, publicly and on the record, that he's not going to interfere with the way states' weed markets work. He hasn't done so yet—all we can do is wait and see if he will.
Follow Eve Peyser on Twitter.