Americans woke up Wednesday morning to find the nation’s drug-policy landscape radically altered.
California, Massachusetts and Nevada legalized recreational marijuana use on Tuesday, while voters in a handful of Southern and deeply conservative states embraced medical marijuana.
Regardless of how a still-contested legalization vote turns out in Maine, more than 1 in 5 Americans now live in states where the recreational use of marijuana is, or soon will be, legal.
“This is the most momentous Election Day in history for the movement to end marijuana prohibition,” Rob Kampia of the Marijuana Policy Project, a group that supported a number of the legalization initiatives, said in a statement. “The end of prohibition is near, and it would be a mistake for the federal government to continue waging war on its own nonviolent citizens.”
But jubilation over marijuana’s ballot victories was quickly tempered by the uncertain future marijuana faces under President-elect Donald Trump’s Justice Department.
Trump has expressed support for medical marijuana, saying he believes it helps ill people. But when asked about Colorado’s model of legalized marijuana last year, he said, “I think it’s bad, and I feel strongly about it.”
Trump has said he would leave the question of marijuana legalization up to states, but he also has surrounded himself with tough law-and-order-style advisers.
“The prospect of Donald Trump as our next president concerns me deeply,” Ethan Nadelmann, executive director of the pro-legalization group Drug Policy Alliance, said in a statement. “His most likely appointees to senior law enforcement positions – Rudy Giuliani and Chris Christie – are no friends of marijuana reform, nor is his vice president.”
Regardless of what happens at the state level, marijuana remains illegal for all uses under federal law. The Obama administration has adopted a policy of noninterference with state marijuana laws, as outlined in a 2013 memo by then-Deputy Attorney General James Cole.
The Justice Department’s position has been that, as long as state legalization efforts don’t threaten certain federal priorities – such as keeping marijuana out of the hands of minors, preventing impaired driving and keeping grow operations off federal lands – it would exercise “prosecutorial discretion” and direct law-enforcement resources to other drug priorities, such as the opiate epidemic.
John Hudak, a senior fellow at the Brookings Institution who studies marijuana policy, said the Cole memo was instrumental in allowing Colorado and Washington state to set up their recreational-marijuana markets.
“A lot of people forget that (recreational-marijuana markets in) Colorado and Washington were pretty much on hold until the governors there received guidance from the Department of Justice,” Hudak said in an interview.
While Trump has said legalizing marijuana “should be a state issue,” it’s unclear what that says about how he would enforce the federal law. Hudak noted that reversing the Obama administration’s hands-off approach to marijuana would be as simple as withdrawing the Cole memo, which would have a chilling effect on investment in the marijuana business.
The Drug Policy Alliance’s Nadelmann agreed.
“I don’t think we’re going to have quite the same green light coming out of the new administration,” he said in a conference call with reporters.
But some congressional observers are skeptical that there will be any appetite in a Trump administration for quashing marijuana reform.
“Go against millions of supporters, against states’ rights, against where the public is?” Rep. Earl Blumenauer, D-Ore., said in an interview. “It would be the beginning of tremendous problems for the Trump administration that they don’t need.”
Blumenauer remains optimistic that Congress will tackle a number of issues that have been vexing marijuana businesses in recent years, including their lack of access to the federal banking system and their inability to take the same tax breaks that other businesses are entitled to.
“The number of men and women in Congress who are now going to represent state legal businesses (will see) a quantum increase” as a result of the marijuana measures passed Tuesday, Blumenauer said.
Beau Kilmer, a drug-policy expert at the nonprofit Rand Corp., said it’s unlikely that changes to marijuana law will be a priority for incoming Trump administration officials. “In the grand scheme of top issues the new administration is going to be dealing with, marijuana is not going to be a top priority,” Kilmer said in an interview.
With 65 million people living in states that have given the green light to marijuana legalization, any federal crackdown “could have significant political costs associated with it,” Kilmer said.
And the burgeoning marijuana industry is likely to step up its lobbying efforts at the state and local levels.
Hudak agrees that any effort to stop state-level legalization will depend on lawmakers’ appetite for dealing with the potential political fallout from the move.
“This is a Congress that is about to repeal the Affordable Care Act,” Hudak said. “I think a Congress and an administration that are willing to do that are not going to worry about the optics of quashing the marijuana industry.”
At the state level, meanwhile, opponents of legalization are regrouping and considering how to address the growing momentum behind legal marijuana. Smart Approaches to Marijuana, the nation’s leading anti-legalization group, announced Tuesday an initiative aimed at reform and oversight of the existing marijuana industry.
The group’s founder and chief executive, Kevin Sabet, said in an email that the effort doesn’t represents a shift away from trying to stop legalization. He noted that the group led a successful campaign against a marijuana legalization measure in Arizona, which lost with 48 percent of the vote Tuesday.
“I am feeling (strangely, maybe) optimistic,” Sabet wrote in an email.