With the proposed crackdown on marijuana, the Trump administration created huge political headaches Thursday for scores of Republicans who were already facing a tough environment in 2018.
Attorney General Jeff Sessions revoked Obama-era guidance to make it easier for federal prosecutors to enforce existing marijuana laws in the eight states that have legalized the substance.
Interior Secretary Ryan Zinke, meanwhile, unveiled a proposal to permit drilling in most continental-shelf waters, including protected areas of the Arctic and the Atlantic, in a boon for oil companies.
Both moves are unpopular with voters, especially key people in places that are likely to determine whether the GOP holds the House. In practice, these two stories probably pose bigger challenges for the president’s party in the midterms than any book about White House dysfunction. A Gallup poll in October found that 64 percent of Americans want to legalize marijuana, including a 51 percent majority of Republicans. Support is also particularly strong among millennial voters who Democrats are trying to galvanize for the midterms.
This explains why most elected Republicans in places that are directly impacted moved swiftly to distance themselves. For example, Trump lost by nine points in the suburban Denver district represented by Rep. Mike Coffman, R-Colo., making him one of the most endangered House Republicans on the ballot this November. “Attorney General Sessions needs to read the Commerce Clause found in Article 1, Section 8, Clause 3 of the U.S. Constitution that limits the power of the federal government to regulate interstate and not intrastate commerce,” Coffman said in a statement. “The decision that was made to legalize marijuana in Colorado was made by the voters of Colorado and only applies within the boundaries of our state. Colorado had every right to legalize marijuana and I will do everything I can to protect that right against the power of an overreaching federal government.”
Rep. Dana Rohrabacher, R-Calif., in an Orange Country district that Hillary Clinton carried, went even further: “The attorney general of the United States has just delivered an extravagant holiday gift to the drug cartels,” he said in a statement. “By attacking the will of the American people, who overwhelmingly favor marijuana legalization, Jeff Sessions has shown a preference for allowing all commerce in marijuana to take place in the black market, which will inevitably bring the spike in violence he mistakenly attributes to marijuana itself. He is doing the bidding of an out-of-date law enforcement establishment that wants to wage a perpetual weed war and seize private citizens’ property in order to finance its backward ambitions.”
Massachusetts Gov. Charlie Baker, R, up for reelection this fall in a state Trump lost by 27 points, said he “fully supports the will of the voters” vis-à-vis marijuana. “The administration believes this is the wrong decision and will review any potential impacts from any policy changes by the local U.S. Attorney’s Office,” a spokesperson said.
— The move by Sessions could have far-reaching political consequences in Colorado, a purple state Trump lost in 2016. The legal marijuana industry generates billions in revenue for the state and is responsible for many jobs.
Sen. Cory Gardner, R-Colo., perhaps the most vulnerable Republican incumbent up for reelection in 2020, threatened to put a hold on all of Trump’s nominees for the Justice Department over the new directive. “This is about a decision by the state of Colorado, and we were told states’ rights would be protected,” he said in a fiery floor speech. “One tweet later, one policy later ― a complete reversal of what many of us on the Hill were told before the confirmation. Without any notification, conversation or dialogue with Congress, completely reversed!”
The senator’s threat is meaningful, and he has lots of leverage, because there are still no confirmed assistant attorneys general for the national security, criminal and civil rights divisions. Of the 93 U.S. attorney slots nationwide, Trump has nominated 58 and only 46 have been confirmed by the Senate.
Gardner spoke by phone Thursday with Sessions. “Let’s just say, there was no reconciliation of differences,” he told The Washington Post. The two will meet next week.
As a candidate, competing in Colorado, Trump promised he would not use federal authority to shut down sales of recreational marijuana. He told a local TV station that he believes the matter should be left “up to the states.”
— Nevada’s Dean Heller, the most vulnerable Republican senator up for reelection in 2018, put out a more nuanced statement: “Knowing Attorney General Sessions’ deference to states’ rights, I strongly encourage the DOJ to meet with Governor [Brian] Sandoval and Attorney General [Adam] Laxalt to discuss the implications of changes to federal marijuana enforcement policy. I also urge the DOJ to work with the congressional delegations from states like Nevada that have legalized marijuana as they review and navigate the new policy.”
Laxalt, the Nevada attorney general and a Republican candidate for governor, noted that while he opposed the ballot initiative to legalize recreational marijuana, “I also pledged to defend the measure were it approved by the voters.” He highlighted his defense of legal pot in two lawsuits. “My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity,” he said.
The elected GOP attorney general of Colorado, Cynthia Coffman, also said the federal government should “not target marijuana businesses who abide by our state’s laws.” “As attorney general it is my responsibility to defend our state laws – and I will continue to do so,” she said.
— To be sure, it’s not just vulnerable GOP incumbents speaking out and these objections aren’t just politically motivated. All three Republicans in the Alaska congressional delegation spoke out against the marijuana change, for instance:
Rep. Don Young, the dean of the House, called it an “unacceptable . . . direct violation of states’ rights.”
Sen. Lisa Murkowski said she has “repeatedly discouraged” Sessions from taking this action over the past year, and that she asked him to work with the states in a cooperative way if he felt changes are necessary. “[The] announcement is disruptive to state regulatory regimes and regrettable,” she wrote on Facebook.
Sen. Dan Sullivan said it “adds new confusion and uncertainty for numerous states and communities.”He believes that it could be “the impetus necessary for Congress to find a permanent legislative solution for states that have chosen to regulate the production, sale and use of marijuana.”
Sen. Rand Paul, R-Ky., safely reelected, also chastised Sessions’s announcement: “I continue to believe that this is a states’ rights issue, and the federal government has better things to focus on.”
Uncertainty and reassurance
— Reacting to the intra-party blowback, the Trump administration sought to downplay the significance of both announcements. “Nothing is final,” Zinke told reporters. “This is a draft program. The states, local communities and congressional delegations will all have a say” before the proposal becomes final.
“Our goal certainly isn’t to cross Governor Scott,” White House press secretary Sarah Huckabee Sanders said at her afternoon briefing. “Just because we may differ on issues from time to time doesn’t mean that we can’t still have an incredibly strong and good relationship.”
— “Whether Sessions’s Justice Department actually busts dispensaries or others involved in state-approved pot production remains to be seen,” The Post’s Matt Zapotosky, Sari Horwitz and Joel Achenbach report. “Sessions announced his decision in a memo sent to U.S. attorneys. He said prosecutors should disregard the old guidance and instead use their discretion – taking into consideration the department’s limited resources, the seriousness of the crime and the deterrent effect that they could impose – in weighing whether charges were appropriate. In a briefing with reporters, a senior Justice Department official said it was unclear whether the new directive would lead to more prosecutions, because that will be up to individual U.S. attorneys across the country. But the official said that previous guidance ‘created a safe harbor for the marijuana industry to operate in these states’ and that that was inconsistent with federal law.”
— But there is already significant fallout. For instance, the chairman of Alaska’s Marijuana Control Board resigned after the news broke. Peter Mlynarik noted that the state’s rules were designed with the previous DOJ guidance in mind. “When you remove the Cole memorandum . . . there’s no reason why they’re not going to prosecute marijuana,” he told the Anchorage Daily News. “Commercial marijuana, I think, is really in jeopardy.” Mlynarik is Soldotna’s police chief. “If they are taking a different stance on it, I don’t want to be involved in something they are going to come down on,” he explained.
— Because this involves marijuana, there were lots of jokes on social media about the new directive. The Colorado state Senate’s Democratic Caucus tweeted this “We’ll give Jeff Sessions our legal pot when he pries it from our warm, extremely interesting to look at hands.”
We'll give Jeff Sessions our legal pot when he pries it from our warm, extremely interesting to look at hands. https://t.co/LF0RpdCiHG
— Colorado Senate Dems (@COSenDem) January 4, 2018
— But this is no laughing matter. Consider this story:
“Being Black in Trump Country: Dozens of People Arrested for Less Than an Ounce of Weed,” by The Intercept’s Shaun King: “After claiming to find less than an ounce of weed in total – which has a street value of around $150 to $200 and would mean only a ticket in the nearby city of Atlanta – police in Cartersville charged all 70 people gathered for a birthday party – including men, women, boys, and girls, ranging from the ages of 15 to 31 – with drug possession and hauled them off to Bartow County Jail. . . . Many of these people’s lives will be ruined because of that small amount of marijuana. Scores of lawyers have been hired; nearly $100,000 in bail money was paid[.] . . . Their mugshots were publicly released. Unable to afford bail, many of the men and women who were arrested were then fired from their jobs after they were left in jail for days on end.”
— Paste Magazine notes the degree to which local decriminalization efforts succeeded across red and blue states in 2016: “Maine legalized marijuana with 46,175 more votes than Trump received. California legalized marijuana with 3,495,231 more votes than Trump received. Massachusetts legalized marijuana with 678,435 more votes than Trump received. Nevada legalized marijuana with 90,405 more votes than Trump received. Florida – a state Trump won – legalized medical marijuana with 1,901,033 more votes than Trump received. North Dakota – a state where Trump more than doubled Hillary Clinton’s vote total – legalized medical marijuana with 752 less votes than Trump received. Arkansas legalized medical marijuana with 99,842 less votes than Trump received. Montana – who has voted Democrat in one presidential election since 1968 – legalized medical marijuana with 12,094 more votes than Trump received. The only state where marijuana was on the 2016 ballot and lost was Arizona.”
— National Review calls marijuana “a gateway drug to federalism”: “If Colorado or Oregon want to legalize weed while Mississippi and Utah ban it, that’s fine. In fact, that is how the country is supposed to work,” writes Charles C.W. Cooke. “The United States is a collection of . . . well, of states; it is not a giant centralized democracy with fifty regional departments. Congress should make it a priority to get the federal government out of this area, and to let the states, not the attorney general’s fealty, determine which rules are best for their citizenries. And conservatives, of all people, should celebrate that. The Founders did not write the Constitution to impose uniformity on hemp. Rarely will we get a better teaching moment than this one.”
With Breanne Deppisch and Joanie Greve