By Rob Hotakainen, McClatchy Washington Bureau
WASHINGTON — After winning big at the polls Nov. 8, backers of marijuana legalization now fear that their movement took a major hit Friday when President-elect Donald Trump chose Sen. Jeff Sessions, R-Ala, as his attorney general.
At a Senate hearing in April, Sessions called marijuana “dangerous” and said that “good people don’t smoke marijuana.”
And in a speech on the Senate floor this year, Sessions criticized President Barack Obama for not being tough enough on marijuana, saying the U.S. could be at the beginning of “another surge in drug use like we saw in the ’60s and ’70s.”
“You have to have leadership from Washington,” Sessions said. “You can’t have the president of the United States of America talking about marijuana like it is no different than taking a drink. … It is different. And you are sending a message to young people that there is no danger in this process. It is false that marijuana use doesn’t lead people to more drug use. It is already causing a disturbance in the states that have made it legal. I think we need to be careful about this.”
The possibility of Sessions becoming the nation’s top law enforcement official promises to set off a debate over the rights of states to operate without federal interference.
Aaron Smith, executive director of the National Cannabis Industry Association, said Sessions “has long advocated for state sovereignty” and that he needs to ensure that the wishes of state voters are respected. After the election, more than 60 percent of Americans now live in states that have approved medical or recreational marijuana, or both.
“I believe that President-elect Trump is someone who has a high regard for the 10th Amendment and states’ rights,” said Derek Peterson, chief executive officer of Terra Tech, a cannabis company in California.
Sessions, however, is another matter.
Aaron Herzberg, partner and general counsel of Calcann Holdings, a California medical marijuana real estate company, called Sessions “the worst pick that Trump could have made” and warned that marijuana legalization in states such as Washington, California and Florida and “may be in serious jeopardy” if Sessions is confirmed as attorney general the U.S. Senate.
“It appears that he is intent on rolling back policy to the 1980s Nancy Reagan’s ‘just say no’ days,” Herzberg said.
Sessions received an “F” on the 2016 congressional scorecard released by the National Organization for the Reform of Marijuana Laws, a pro-legalization group.
Erik Altieri, the group’s executive director, called Sessions “a militant marijuana prohibitionist” and said his nomination “should send a chill down the spine of the majority of Americans who support marijuana-law reform.”
Sessions’ nomination is good news for opponents of legalization.
“Well, let’s just say that if I had marijuana stocks right now, I’d be shorting them,” said Kevin Sabet, president of the anti-legalization group Smart Approaches to Marijuana. “This is a man who we know is staunchly anti-legalization. There’s no way around that. Things are about to get interesting.”
Last week, voters in California, Nevada, Massachusetts and Maine approved the recreational use of marijuana, adding to the list that included Alaska, Colorado, Oregon and Washington. Twenty-eight states now allow the use of marijuana for medical reasons.
Marijuana backers can also pitch the industry as an employment issue, with the industry expected to have a market value of nearly $22 billion by 2020. So far, marijuana sales have resulted in big business for both Washington and Colorado, the states that first legalized recreational marijuana. In 2015, licensed stores in Colorado sold $996 million worth of recreational and medical marijuana. In Washington state, marijuana sales hit a milestone in the first three months of 2016, surpassing sales of hard liquor for the first time.
Tom Angell, chairman of Marijuana Majority, a pro-legalization group, said the new administration “would do well to take a look at the polling data on this issue before deciding what to do.”
“While the pick certainly isn’t good news for marijuana reform, I’m still hopeful the new administration will realize that any crackdown against broadly popular laws in a growing number of states would create huge political problems they don’t need,” Angell said.
The big question is who will call the shots in the Trump administration. During the presidential campaign, Trump followed Obama’s lead in arguing that legalization should be left to the states.
“It would certainly be controversial if Senator Sessions completely defied the president who appointed him,” said Mason Tvert, spokesman for the pro-legalization group Marijuana Policy Project.
But with federal law superseding any state law, Sessions would have broad power to shut down all marijuana operations in the country.
All he would have to do is enforce the federal law that bans marijuana and lists it as a Schedule 1 drug, like LSD and heroin, with no medical value.
Obama’s Justice Department declined to enforce the law and allowed the states to proceed with legalization, as long as they promised to do a good job policing themselves.
Mark Kleiman, who was Washington state’s top marijuana consultant after voters legalized the drug in 2012, said this year that a Trump administration “could shut down the legal cannabis industry everywhere in the country with the stroke of a pen.”
“All you have to do is take a list of the state-licensed cannabis growers and sellers into federal district court and say, ‘Your honor, here are the people who have applied for and been given licenses to commit federal felonies,’ ” said Kleiman, who is now a professor at New York University’s Marron Institute of Urban Management.
Rep. Earl Blumenauer, D-Ore., one of the top supporters of full-scale legalization in Congress, said the Senate should “do its job” by rejecting Sessions and that Trump should allow states to proceed with legalization. He said “the thought of Jeff Sessions at the helm of our justice system is deeply disturbing.”
Noting that legalization has been embraced by voters “in red and blue states alike,” Blumenauer said: “I am hopeful that the next administration, regardless of the attorney general’s personal feelings, will respect the 10th Amendment and states’ rights to set their own policy in regards to cannabis.”
Sessions has often promoted the rights of states to operate without federal interference.
In 1998, for example, he argued that the federal government should not allow Native American casinos to open in states where gambling is illegal. Sessions said states, not federal bureaucrats, should have the final say in the location of casinos.
While some marijuana backers said last week’s legalization votes represented a tipping point in the drive toward national legalization, Friday’s news seemed to change everything.
“It could be really bad news, if we don’t fight back,” said Steph Sherer, executive director of Americans for Safe Access, a group that promotes medical marijuana.