The Trump administration has a quite stern view towards marijuana. In regards to marijuana policy, Trump has stated that he would like the decision to come down to the states. Despite the unlikelihood, Washington marijuana policymakers have a quick response to the idea of federal interference.
It used to be that every 50 minutes in Washington State, someone was arrested on cannabis charges. A disproportionate number of those arrests were people of color. After I-502 passed, which legalized recreational weed in this state, those arrests rarely happen now. But now the people who built and are carrying out I-502’s regulatory system are in legal jeopardy in light of existing federal drugs laws.
President-elect Trump—who doesn’t drink, smoke, or use drugs—has tapped die-hard prohibitionist Senator Jeff Sessions (R-AL) to be his attorney general. Sessions said just this year, according to Politico, “Good people don’t smoke marijuana.” He has said that cannabis policy reform has been a “tragic mistake.” He even once said he thought the KKK “were okay until I found out they smoked pot.”
So while it’s unlikely the federal government will send DEA agents into states like Washington to enforce federal laws, what if Sessions decides it’s worth it? What if, in his political calculation, this is the issue he wants to be remembered for?
The lawyer responsible for legal pot in Washington has an unlikely answer: We could burn the whole legal cannabis system down.
“The most effective way to defeat federal interference in cannabis regulatory systems may very well be for state legislators to repeal all laws and regulations relating to cannabis,” said Alison Holcomb, the ACLU attorney who wrote I-502 and ran the successful legalization campaign in 2012.
Holcomb’s plan would have the state legislature completely strip any mention of cannabis from Washington’s legal code, removing both the laws currently regulating the state’s legal cannabis market and the much older laws criminalizing cannabis in the first place. Technically, cannabis in Washington is still illegal under the state’s controlled substance statutes, but I-502 carved out an exception to the state’s prohibition of cannabis provided the cannabis business is conducted within the new regulatory framework.
“Repeal it all, so there are no laws on the Washington State books that address marijuana,” Holcomb said.
That would make the state totally blind toward cannabis—no state agency would keep records on cannabis businesses, no law enforcement officer in the state could investigate pot crimes. It would turn the very regulated and rational cannabis market into the federal government’s worst nightmare. The regulations keeping Washington’s legal pot within our state, out of children’s hands, and away from organized crime would all dissolve.
This would not stop the federal government from cracking down on pot. Federal agents would still have every legal right to knock down doors, confiscate bud, and make arrests. But with only about 5,500 sworn DEA agents in the United States, this task would be equal parts Herculean and Sisyphean. Most federal law enforcement raids put the heavy lifting on local law enforcement, which numbers more than 750,000 sworn officers across the country. But if there were no statewide laws on cannabis, local law enforcement would not be able to help.
This is a prospect that the Obama administration has already considered, and used as a basis for not blocking Colorado’s and Washington’s cannabis experiments. When the lawyers at the Department of Justice looked at ways of responding to I-502, they saw that they had legal merit to sue against Washington’s cannabis regulations, but they would be unable to force the state to criminalize cannabis.