The disorienting effects of marijuana…on the Trump administration

Marijuana policy is not a top-10 issue of importance to the Trump administration, and honestly, it shouldn’t be. Numerous other issues from jobs to the overall economy to terrorism to instability abroad and other matters occupy the administration’s attention regularly. In fact, those are ranked among the issues Americans believe are most important, according to public polling; marijuana policy is not.

The president’s appointees seem addicted to a rhetorical whiplash that has thrown individuals, businesses and state government officials into a state of policy disarray.

However, to say that marijuana policy is not important would be completely wrong. It is an issue that touches federalism, medicine, health, commerce, taxes, agriculture, jobs, taxes, regulation, public health, public safety, law enforcement, and more. It matters to hundreds of thousands of Americans who use marijuana for medicine; it matters to tens of thousands of Americans who work in state-legal medical and adult-use industries. It matters to the governments of 29 states and DC who have legalized medical marijuana and the eight states and DC that have legalized adult-use marijuana.

Simply because it is not a top-10 issue for the administration does not mean the administration should not have a serious, consistent, meaningful approach to how it will handle the issue. With over 2.5 million civilian employees and about 4,000 presidential appointees in the U.S. government, the administration should be able to walk and chew gum and do about 10,000 other things at the same time.

Despite the importance of the issue and the capacity of the government to address it, the myriad officials for whom marijuana policy is part of their portfolio cannot get on the same page. Since Mr. Trump’s election, his team has addressed marijuana policy multiple times and in so doing, frequently contradict each other; in some cases, officials even contradict their own words.

I’ll review some of the players and the rhetoric coming from the administration. (Later, I’ll discuss some of the consequences of the disjointed messaging.)

White House Press Secretary Sean Spicer

As I noted in a post from late February, Spicer addressed marijuana policy during a press briefing and conveyed a difference between medical and recreational marijuana. He carved out a position that largely reflected the president’s words from the campaign trail, stating “I think medical marijuana, I’ve said before, the president understands the pain and suffering that many people go through who are facing, especially terminal diseases, and the comfort that some of these drugs, including medical marijuana can bring to them.” Spicer also stressed differences in federal law between medical and recreational marijuana, suggesting a need for firm enforcement over recreational marijuana.

Attorney General Jeff Sessions

During his confirmation hearing, Sessions suggested there was some benefit in the Justice Department prioritizing certain marijuana offenses over others, subtly noting the benefits of the Cole Memo. That combined with Sessions’ failing to rescind the Cole Memo, now nearly three months on the job, has made some in the marijuana reform community cautiously optimistic.

However, Sessions has also questioned the medical value of cannabis, even in the face of research from the University of Michigan and elsewhere that directly contradicts his beliefs. During an interview on the Hugh Hewitt radio show, Sessions reiterated that he will continue to enforce federal marijuana laws that consider marijuana illegal in all cases. He noted, “marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide.” Although he went on to accept the anti-commandeering doctrine that bars the federal government from forcing state and local law enforcement agencies to enforce federal law, he reiterated his goals to enforce against what he believes is “a more dangerous drug than a lot of people realize.”

Treasury Secretary Steven Mnuchin

The Treasury Department has authority over marijuana via taxes and banking regulations. These are meaningful areas of policy with significant effects. For example, Section 280E of the Internal Revenue Code prevents state-legal marijuana businesses from claiming most federal business tax deductions, leading to substantially higher tax burdens for legal cannabis enterprises. Also, laws and regulations bar financial institutions from legally working with the state-legal marijuana industry, driving huge swaths of the industry to be cash-only.

In his questionnaire during his confirmation process, Mnuchin was asked about both federal tax and banking policy toward marijuana. He stated that he would “review the 2014 FinCEN guidance” which sought to provide cover for banks seeking to work with the marijuana industry. He went on to say, in direct response to a question on marijuana, “If confirmed, I will work with Congress and the president to determine which provisions of the current tax code should be retained, revised or eliminated to ensure that all individuals and businesses compete on a level playing field.”

Homeland Security Secretary John Kelly

Secretary Kelly has had some of the most dizzying comments on marijuana. In a late November 2016 interview with Military Times, Kelly indicated support for medical marijuana but fierce opposition to non-medical uses of marijuana or other illicit drugs—a position close to the president’s.

However, in the course of two days in April, Kelly gave conflicting and confusing comments on the topic and went on to ignore research. On April 16^th, in an interview on Meet the Press, Kelly noted that in fighting the war on drugs, marijuana was “not a factor.” However, on April 18^thduring a speech at George Washington University, Kelly transformed into a passionate drug warrior. Kelly stated, “And let me be clear about marijuana. It is a potentially dangerous gateway drug that frequently leads to the use of harder drugs… Beyond that, however, its use and possession is against federal law and until the law is changed by the U.S. Congress we in DHS are sworn to uphold all the laws on the books.”

The consequences of scattered rhetoric

It’s clear from the rhetoric of these key political appointees that there is nothing clear about this administration’s marijuana policy. Some seem supportive of reform; others seem supportive of certain reforms; still others seem to change their mind from day to day.

Leadership from the White House can fix this and demands for consistency in policy and messaging can flow from the president’s pen. Mr. Trump has shown little hesitation in using executive actions (orders, memoranda, etc.) to set his administration on the same track and indicate the manner in which he wants policy carried out. He should do the same on marijuana policy.

Medical marijuana is available in states that are home to about 200 million people and about 20 percent of Americans live in states with legal, adult-use marijuana. Patients and customers wonder what the administration’s enforcement efforts will look like.

The thousands of state-legal businesses across the country sit in a period of uncertainty. President Trump understands better than any of his predecessors what significant uncertainty in an industry means. It can reduce investment, limit growth, affect prices, slow job creation, reduce morale, and negatively influence individual firms in a variety of other ways.

State government officials—governors, legislators, regulators—have communicated with the administration in a variety of contexts and channels to voice their concerns. Many of those officials have asked the federal government to take a hands-off approach or to consult with them before adopting an aggressive enforcement agenda. Those state government officials know that a significant crackdown risks driving mature and sizeable legal operators underground into an unregulated black market. That is a nightmare for states and that nightmare looms on the horizon in the current, uncertain policy environment.

The president’s appointees seem addicted to a rhetorical whiplash that has thrown individuals, businesses and state government officials into a state of policy disarray. At the same time, it has not stopped states from moving forward with reforms. Implementation continues among the numerous states that have legalized medical or adult-use marijuana in recent months and years. West Virginia approved medical marijuana legislation this week. State legislative chambers continue to debate and vote on medical and adult-use marijuana legislation.

The disjoint between state and federal law well reflects the disjoint happening within the administration. The former is due entirely to federalism and a Congress that has opted not to work with states as they reform their laws. The latter is inexcusable policy and messaging problem. And that problem can be solved by one man with one document. The opportunity exists for the president to solidify and publicize what his administration’s position will be on marijuana and push those around him to listen to their boss.