Underneath the growing public support and booming cannabis industry, federal law still considers marijuana as illegal, even though state law may say otherwise.
The administration of former President Barack Obama took a hands-off approach and left it up to the states to govern and prosecute the use of marijuana. Under Federal law, marijuana is considered a “Schedule 1” drug like heroin.
Next year, California, the 6th largest economy in the world, will legalize adult/recreational use of cannabis. The state’s Proposition 215 first legalized medical cannabis in 1996.
With the new Trump administration comes uncertainty.
“The marijuana industry is definitely an industry that is in flux and part of it is because of this very complex regulatory landscape. It’s legal at the state level, it’s illegal at the federal level and there are a lot of conflicting laws,” said Daniel Yi, a spokesman for MedMen, a management company for marijuana dispensaries.
“There are areas of law [in] which we have both federal and state laws. When those laws are in direct conflict, the federal law trumps – no pun intended of course – the idea being really the supremacy clause which is a clause in the United States Constitution that makes clear that the federal law is supreme,” said constitutional law and political science expert Martin Adamian at California State University, Los Angeles.
Adamian said even though federal agents can still enforce laws at a state level, federal law does not undo the state law if they conflict, making this a gray area and often confusing to the lay person. Ultimately, it is up to each administration to set enforcement priorities. The new Trump administration is creating uncertainty among those in the cannabis industry.
“There’s a lot of fear from those involved in the medical marijuana as well as the recreational marijuana industries. There’s a lot of fear about the uncertainty that exists. And so it may be the case that the Trump administration could decide to prosecute individuals on some level for violations of those laws,” said Adamian.
The new attorney general, Jeff Sessions, has in the past been a critic of marijuana. In a 2016 Senate Drug Caucus hearing, Sessions, then a senator from Alabama, said, “Good people don’t smoke marijuana.” It appears he believes “good people” include men who assault women.
In his Senate confirmation hearing for attorney general, Sessions was vague when answering a question from Vermont Senator Patrick Leahy.
“Would you use our federal resources to investigate and prosecute sick people who are using marijuana in accordance with their state laws even though it may violate federal law?” questioned Leahy.
“I won’t commit to never enforcing federal law, Senator Leahy, but absolutely it’s a problem of resources for the federal government,” replied Sessions.
“With enough independence and freedom to decide the direction he wants to go, somebody like Jeff Sessions may very well try to enforce federal marijuana laws which could lead to additional raids even within states that have approved marijuana use,” said Adamian.
Some players in the cannabis industry, however, are more hopeful, including Yi.
“If you go by the theory that government follows the will of the people, and the fact that the marijuana industry’s already thriving – It’s already growing and it’s functioning within the bounds of law and is showing it’s a possible industry, I think we feel pretty optimistic about the future.”
Congress is responding to the growing popularity of marijuana. Four members of Congress formed a bipartisan Cannabis Caucus to bridge the disconnect between state and federal government, and capitalize on the growing industry.
Public opinion about legalization of marijuana has shifted in its favor. The Pew Research Center finds that 57% of those polled support the legal use of marijuana compared to 32% in 2006.
The cannabis industry is also growing. In 2016, the legalized marijuana business reached close to $7 billion. That number is expected to increase to more than $21 billion in five years, according to Arcview Market Research, which describes cannabis as the “fastest growing industry in the world.”
As the industry gains more revenue, it’s only a matter of time before there is enough cash to change the policy in Washington.