A Colorado Republican senator believes President Donald Trump will support a bipartisan congressional effort to give states autonomy over their marijuana laws – even though it would put the White House in direct conflict with its Justice Department.
Sen. Cory Gardner and Sen. Elizabeth Warren, D-Mass., introduced legislation Thursday morning that would protect the nine states and D.C. that have legalized marijuana from any federal interference. This would allow businesses that sell marijuana to operate without fear of prosecution by the Justice Department.
Gardner said he spoke with Trump earlier in the day and was confident the president would sign the bill.
“I have talked to the president about this bill,” Gardner said at a press conference. “In previous conversations he talked about the need to solve this conflict. He talked about his support for a states’ rights approach during the campaign. Not putting words in the mouth of the White House, but I think this will be an opportunity for us to fulfill what is that federalism approach.”
Trump on the campaign trail did say that marijuana legalization should be up to the states. And Gardner says Trump promised him in April – after the senator blocked nearly 20 Justice nominees over the issue – that Colorado cannabis businesses would not be targeted.
But if Trump throws in his support for the bill, it would set up a conflict with Attorney General Jeff Sessions, who has long been an impassioned opponent of marijuana. In January, Sessions rescinded a key Obama-era guidance that instructed federal law enforcement not to waste resources targeting marijuana operations in states where they are legal. In scrapping what’s known as the Cole memo, Sessions unilaterally determined that the federal government should have the authority to crack down on marijuana sales.
Warren said it was Sessions’s hard line on marijuana that lit a fire under lawmakers from states where marijuana is legal to do something.
“It spurred us to more immediate action and to start to build the bridge,” she said. “Let’s take a practical step that reflects the will of the people of our home state.”
A Justice Department spokesman declined to comment.
Public opinion has also shifted favorably on marijuana use in recent years. Nearly two-thirds of Americans believe smoking marijuana is morally acceptable, according to a recent Gallup survey.
Marijuana advocacy groups are cheering the legislative push. Morgan Fox, president of the National Cannabis Industry Association, said the bill “would finally provide a real safe harbor for businesses and individuals in compliance of state laws.”
Businesses in states where marijuana is legal must pay taxes, but are not eligible for tax deductions. They also do not have access to federal bank loans or the ability to set up accounts, so many operate on a cash basis, leaving them vulnerable to theft, according to advocates.
Tim McCulloch, a lawyer at Dickinson Wright who provides counsel to the cannabis businesses, said states where marijuana is not legal do have a right to be frustrated by the marijuana traffic coming across their border from states where it is. He also cautioned there could be nuanced sticking points such as how a bank that operates in multiple states would handle the transfer of money, when one branch may be in a legal marijuana state and another in a state where it’s not legal.
Still, he described the bill as “a pretty elegant solution on first blush.”
But Kevin Sabet, president of Smart Approaches to Marijuana, believes there should be strict limitations on for-profit marijuana businesses that he said prey on addicts with pot gummies and cookies and have “effected other states across the country by being a haven of exportation of marijuana.”
Sabet believes Gardner has overstated Trump’s support. Several weeks ago he said he received an email from the White House signed by Trump in response to a letter he wrote about federal marijuana policy. The letter, which Sabet provided to The Washington Post, said:
“This decision by the DOJ simply means that Federal prosecutors, in deciding which marijuana activities to prosecute, will return to following the well-established principles that govern all Federal prosecutions. Therefore, this decision is a return of discretion to Federal prosecutors, who know where and how to deploy their resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs … As President, I am committed to upholding the rule of law and to protecting our communities and families.”
“This is how the president makes deals,” Sabet said. “I don’t think anyone would want to bet on what this president is thinking today versus tomorrow.”
Still, the issue is bringing together interesting bedfellows on Capitol Hill. And it’s not just Warren and Gardner. A companion bill in the House was also introduced Thursday by Reps. Earl Blumenauer, D-Ore., and David Joyce, R-Ohio. And in April, Sens. Orrin Hatch, R-Utah, and Kamala Harris, D-Calif., wrote to Sessions asking him to stop blocking medical marijuana research.
“I think there’s enthusiasm on both sides of the aisle to get this done,” Warren said. “This is an example of Congress doing its job.”
And Gardner said for every Republican cosponsor they’re trying to get a Democrat, and vice versa. “We’re lining them up like Noah’s Ark as they come on two-by-two,” Warren said, chuckling.