Donald Trump said three times while campaigning that pot legalization should be left “up to the states.” But after five weeks in the White House, his former press secretary, Sean Spicer, announced that recreational marijuana — which was legalized by eight states without resulting in a crackdown by the Obama administration — has zero leeway under federal law. “I do believe you’ll see greater enforcement of it,” Spicer told the press corps.
Since then, lots of conventional wisdom says the White House can — and probably will — try to shut down America’s pot experiment.
That wisdom looked particularly valid given that Trump’s chief law enforcement officer, Attorney General Jeff Sessions, has sharpened the attacks. He said in February that distributing pot remains illegal “whether a state legalizes it or not,” and turned the screws in March by warning federal prohibition “applies in states where they may have repealed their own anti-marijuana laws.”
“If the Trump administration wanted to shut down our industry, he could say the word and have every dispensary door kicked in simultaneously,” Travis Nelson, president of the Colorado Cannabis Growers Association, told BuzzFeed News. The press has heeded the threats, too: The Washington Post said the stern warnings Sessions sent to several governors this month show he “might begin prosecutions,” while Slate predicted he “will probably crack down.”
How, exactly, the Trump administration will approach this is TBD. The Justice Department is currently considering its options.
At any time, though, Sessions and Trump could begin raids in Alaska, Colorado, Oregon, Nevada, and Washington state — where thousands of state-licensed pot businesses are already operating in the open. The administration could then argue in court that even issuing pot licenses is superseded by federal law.
Raiding farms and stores may seem simple, at first, but unlike federal pot busts in past years, targeting regulated state systems would present new legal disputes over states’ rights.
BuzzFeed News’ interviews with law enforcement, former federal prosecutors, state officials, and conservative leaders show a crackdown would give rise to a hydra that pulls Trump into logistical, political, and legal traps — replicating his most humiliating setbacks like the travel ban (legal) and Obamacare (political).
Not only is legalization unprecedentedly popular, a crackdown has grown even more unpopular — and Trump would be destroying jobs in rural districts that voted for him. Possibly most damaging for Trump, though, is that he can’t fully win, because state decriminalization of marijuana cannot be completely stopped.
“They have very limited tools, and I think none of them would be successful,” Jenny Durkan, who served as US attorney in Washington state in 2012 when legalization took hold there, told BuzzFeed News. “I just don’t think they can stick the genie back in the bottle.”
There are several paths Trump could take if he wanted to try anyway. Here’s why each one would be difficult, or even impossible.
1. Trump can’t bust all the legal pot businesses because there are way too many already.
Trump can’t possibly conduct raids on every pot business simultaneously.
In Alaska, Colorado, Oregon, and Washington combined, state officials have approved 4,769 licenses for recreational pot businesses, according to a BuzzFeed News analysis of reports from state agencies.
“Who would be kicking in all these doors?” asked John Walsh, who was the US attorney in Colorado from 2010 to 2016, in an interview with BuzzFeed News.
The Drug Enforcement Administration maintains about 5,600 employees for domestic enforcement across the country, budget figures show. That’s roughly equal to the number of pot businesses in operation, and thus hardly enough staff to raid them all at once. Adding to the math, the number of doors is growing. Farms and stores are applying for licenses now in Nevada, where voters passed a law last November. Officials in California, Maine, and Massachusetts will launch their systems in 2018 — and California’s market alone will dwarf the rest.
“It’s not as if there are unlimited cadres of federal agents with nothing to do but take down state-compliant businesses,” added Walsh, who was the top federal prosecutor in Colorado when stores opened there.
2. If Trump were to even threaten pot businesses, he would still end up in brutal court battles.
The least strenuous way for Trump to try to bring weed to heel is by sending letters that threaten every business owner with a lawsuit if they don’t close.
Durkan sent similar letters to medical marijuana dispensaries in Washington state a few years ago — but that won’t work now.
“There were no legal dispensaries at that time, so they had no defense,” she explained. “If you send a letter now against any of the existing legal dispensaries, you basically are attacking the state system itself.” That gives defendants a stronger hand in court, she added, “and it tees up the question of whether the state has a legal right to do that.”
The Justice Department’s Task Force on Crime Reduction and Public Safety is considering the best way to proceed, including whether to rewrite Obama’s 2013 policy for pot. A subcommittee reported back to Sessions last month, saying it wanted to study the issue more, according to an Associated Press report. Ian Prior, a spokesperson for the Justice Department, declined to comment to BuzzFeed News on its approach, saying, “We’ll make announcements on policy changes as appropriate.”
The White House didn’t respond to a request for comment.
But the problem with simply scaring businesses into shuttering is that many won’t close even under pressure.
“I’m not going to give up easy,” Shilo Morgan, owner of the Lucky Leaf Co. in Spokane County, Washington, told BuzzFeed News. She’s built a coalition with dozens of nearby pot businesses called the Eastern Washington Cannabis Association, in part to brace against Trump and Sessions. “We’d have to call in the troops and put together our crew and fight as a whole.”
“We have all worked our tails off to get to where we are,” she said. “We have a lawyer on standby.”
Hardly an anomaly, the pot industry is built on former activists used to risking jail, explained Taylor West, the spokesperson for the National Cannabis Industry Association. “They’ve fought before and they can do it again if they have to — and now with a lot more allies on their side.”