Anyone watching who Donald Trump has been nominating for cabinet positions is not surprised by the recent comment by the president’s press secretary, Sean Spicer, that there will likely be “greater enforcement” of federal marijuana laws in legalization states.
However, watch what they do rather than what they say. It’s an old political adage, and here, a very important one.
In policy analysis, as in other forms of problem solving, it is useful to consider the constraints, the limits on available options. Constraints determine the viable solution for any problem.
Here, state laws on legalization remain a serious and significant hurdle, even for the exercise of federal law. Add public opinion to the list, and then consider the increasingly meaningless distinction between recreation and medical marijuana use. (Yes, a meaningless distinction—and while some may disagree, that is a an discussion for another day.)
The reality of the situation is that federal law enforcement has limited resources to apply in limited ways to state-level marijuana markets. An across the board attack on recreational marijuana producers and sellers remains an option for the Justice Department. But using their approach to immigration, it is more likely that they will engage in selective enforcement designed to minimize public opposition.
The most likely targets of federal action will be marijuana production in legal states that flows into other states. In other words, the feds will focus on interstate commerce, which remains illegal under both state and federal law.
Another constraint, though, shapes the policy environment.
Consider just how much money is pouring into legalization states in terms of taxation, job growth and related economic development. Sure, Trump employs a great deal of rhetoric about those last two items. But that first one, tax revenue, is rather important to the Trump political agenda. Don’t think for a moment that this is something his administration will fail to consider.
Look at the Trump agenda. Build a wall on the southern border. Increase military spending. Invest billions in infrastructure improvements. Provide less expensive health care. Reduce taxation of corporate profits.
It doesn’t take a lot of sophisticated analysis to understand that Trump’s agenda is expensive, very expensive, and it is going to take more than economic growth to pay for it. Paying for the Trump agenda is the sweet spot—that’s the target to aim for to get the maximum results.
Budgetary issues not only constrain the moves federal law enforcement can take against the marijuana industry, they also create a tremendous vulnerability for any anti-cannabis campaign by the Justice Department and its political allies.
The Trump administration has already conceded the legitimacy of the medical marijuana industry. In doing so, they have conceded that prohibition is obsolete and that any enforcement of it by way of the Controlled Substances Act will be selective and targeted.
They have conceded that federal law must be changed and that new laws need to be passed at the federal level to recognize and complement state-level policy changes.
Back to an earlier point, this is why the distinction between recreational and medical marijuana is meaningless. The issue is the viability of using the Controlled Substances Act to regulate and/or control the marijuana business in the age of state-level legalization. The facts on the ground, so to speak, argue that this cannot be done.
It is interesting that the Trump administration has taken an interest in the opioid crises, but it’s no surprise that they are trying to exploit it in terms of pushing their goal of a great Trumpian Wall on the southern border. However, efforts to curtail importation of marijuana from other countries will only strengthen the domestic marijuana market, licit or illicit.
Entering the quasi-legal, state-level marijuana market is a risky proposition for entrepreneurs. Who will be affected by changes on federal policy remains to be seen. But the big picture, the constraints that affect changes in marijuana policy throughout the United States, isn’t going to change any time soon, if at all.
The bottom line is that the Trump administration needs revenue, and as the months and years go by, their need for revenue will only increase. That’s the sweet spot and the way to advance the legalization of cannabis to hit it, hard, and often.
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