Ever since the nomination of hardcore pot prohibitionist Senator Jeff Sessions for the position of United States Attorney General, numerous members of the cannabis community have expressed increasing concern that the incoming Donald Trump administration might crack down on state-legal marijuana businesses in Colorado and beyond.
At this writing, neither Trump nor Sessions has publicly announced such a policy. But if they decide to move in this direction, what tactics would be at their disposal? How would they go about attempting to outlaw an entire industry — one that employs thousands of people and generates millions in tax revenues for the State of Colorado?
For answers, we turned to Sam Kamin, Vicente Sederberg professor of marijuana law and policy at the University of Denver's Sturm College of Law and a longtime expert on cannabis conflicts between states and the federal government.
Kamin sees three main approaches the Trump administration could take to force the shuttering of state-legal marijuana businesses. One would utilize the judicial system, a second would involve Congress' spending powers and the third would employ law enforcement — although Kamin thinks aggressive raids by body-armored drug-enforcement agents are unlikely. More practical anti-weed weapons, in his view, are documents sent through the U.S. mail.
He also speculates about the prospect of these tools being used. His message: Shrugging off a worst-case scenario is foolish, particularly in a political year where expectations have regularly been upended.
Continue to read the combined transcript from two conversations with Kamin, followed by a video in which he discusses a slew of other marijuana-related legal issues.
Westword: To clarify: A new attorney general couldn't simply announce, "State-legal marijuana ends on Monday." It would be a much more labyrinthine process, correct?
Sam Kamin: Right. He could say that, but it might not have that effect. The attorney general could say, "We believe this is beyond the power of states to do and we're going to make it end." But the doing would be more complicated.
What would be the first step the administration would likely take to shut down the marijuana industry?
There are several possible ways that could go. One would be sort of a lawsuit to enjoin state regulatory regimes like we have in Colorado. We saw a lawsuit like this filed by Oklahoma and Nebraska in late 2014. A lawsuit like that could simply say that state laws are preempted by federal law and they're null and void — something like that.
Would Colorado's attorney general [Cynthia Coffman] then be required to file an action in an attempt to prevent that from going through?
That's right — just as the attorney general did when the lawsuit was originally filed.
The U.S. Supreme Court chose not to hear that case. Would that provide any guidance for the court this time around? Or could the fact that there are only eight justices currently on the court and the likelihood of a very conservative new justice coming aboard change things?
The fact that they didn't hear the case has no precedent. That suit was filed in the Supreme Court because that's the only place that suits between states can be filed. This suit, if it were to happen, would be filed in federal district court, presumably in Colorado.
Let's suppose the Trump administration is successful at the federal district court level. What would likely be the next step from there?
Then there would be an appeal to the 10th Circuit and ultimately to the Supreme Court. But I think it's important to understand what exactly the federal government can and can't challenge. They couldn't challenge Colorado's decision not to criminalize small amounts of marijuana. The legalization piece is beyond the power of the federal government to contest. They would really only challenge our regulatory and tax regime. This was noted in the Oklahoma and Nebraska lawsuit. The remedy there would be a strange one. It would say, "The State of Colorado can legalize marijuana. What it can't do is regulate it."
What are the possible repercussions to that kind of ruling from an industry standpoint?
That's unclear. If the federal government were to prevail, it would essentially say Colorado can legalize but it can't regulate, which could simply mean that marijuana is a free-for-all in our state — that anyone can produce anything they want. But more likely, it would mean that marijuana in Colorado is legal, but the regulated production of it is not.
This gets to another mechanism that's available to the federal government, which is law-enforcement action. The federal government could, without suing, simply begin enforcing the Controlled Substances Act here in Colorado.
That would be done through the U.S. Attorney's Office and the DEA?
What's your best guess about the practicality of that? Some in the industry envision federal agents marching into every single marijuana business in the state and closing them down, which would be difficult to pull off simply from a manpower standpoint.
Sure. There aren't that many DEA agents and the U.S. Attorney's Office has other things to do as well. So that seems to me unlikely. More likely, to me, would be a few selected arrests and enforcements or letters from the U.S. Attorney or the Drug Enforcement Administration indicating that an individual is out of compliance with federal law and he has thirty days to stop or face arrest.
Several years ago [beginning in January 2012], the federal government did issue letters of the sort you describe here in Colorado. Could you remind folks what was behind that action and how it turned out?
That was before statewide regulation of medical marijuana, so we're going back several years. Those were letters sent to medical marijuana facilities that were within 1,000 feet of a school. They basically said, "You're within 1,000 feet of a school. This is a violation of U.S. code. You have to close." And that was effective against those facilities. They either moved or closed, and that was done without arrest or prosecution. So that's a model I think a lot of people are afraid might recur if it became a priority of the Trump administration.
If the Trump administration chose to go in that direction, what recourse would businesses have? Could they band together and file a lawsuit to halt those actions? And if so, where would that kind of complaint be heard?
That's a possibility. But it seems quite clear that the federal government can enforce federal marijuana laws in Colorado. That could be contested, but if they turn into criminal prosecutions, they'd be tried in a federal district court in Colorado as a criminal matter.
Could any issue arise over selective prosecution? Or could the federal government target individual businesses rather than all of them at the same time?
That sort of selective prosecution claim is very difficult to make. As long as the prosecution didn't appear to be First Amendment retaliation or something akin to that, the government isn't under an obligation to enforce the law against everyone. It can pick and choose and make strategic decisions much as it has throughout the Obama administration. There have been marijuana prosecutions during the Obama administration, just not in states like Colorado that have robust regulatory regimes. The ability to select targets for prosecution is part of what prosecutorial discretion entails.
If I'm following you correctly, the timeline for the sort of law enforcement action you detail would seem to be a lot shorter than going through multiple levels of the judicial system. Could you compare how long each approach would take?
Litigation in federal court takes a long time. Sending a letter to an individual store or making an arrest in an individual store or announcing a new enforcement regime could be done the first day in office.... And those letters could be sent not just to dispensaries but to landlords as well. The federal government could say, "We know that marijuana is being manufactured on your premises. Why don't you kick those people out before we seize your building?"
Another interesting thing I'm thinking about is, with all these cities saying they're not going to help with deportation at the risk of losing federal dollars, there's some possibility that the federal government might use that same spending power to get states to participate in marijuana prohibition. It would be a less intrusive means of getting states to fall in line with federal policy.
Is that something the Trump administration could use on states that already have marijuana laws on the books? Or would it be mainly used to prevent other states from going that direction?
The exact parameters of the spending power aren't clear. In a case called Sebelius [full title: National Federation of Independent Business v. Sebelius], which was about the Affordable Care Act, the Supreme Court said there are limits on Congress' spending power — that it could use the spending power as a carrot but not as a stick. Or it could use it as an inducement but not a threat. So it's not clear what the outer borders of that are. But I don't see why the federal government might not try to say, "We're going to withhold some federal funds unless a state adopts or retains prohibition."
Now we step into the area of speculation. What is your best guess about the likelihood of either of these possibilities happening?
I would say that in the politics I'm used to, this would not be a place the administration would want to start. Colorado is a purple state, Florida, which just passed medical marijuana, is a pretty purple state as well. This isn't a politically expedient thing to do now that 28 states have medical marijuana and eight states have recreational marijuana. But politics as usual hasn't played out lately. So it's hard to know where this is on the Trump administration's priority list, and on Jeff Sessions' priority list. Normally, I would think it would be quite far down on the list. But anyone who's been speculating based on what normally happens has been wrong this year. I'd bear that in mind.
We tend to think of Republicans and conservatives as supporting states' rights — and that's been an argument in favor of the federal government allowing states such as Colorado to take whatever actions they'd like when it comes to marijuana policy. What's your feel for whether that philosophy might win the day?
That's a very strong argument, and that was voiced by some legislators in Oklahoma and Nebraska when the attorney generals there filed their lawsuit. They said that we think each sovereign state should be able to make their own policies and the federal government should stay out of it, and we should stay out of our neighbors' policies. So that certainly has some political resonance to it.
To bottom line this, most administrations in this kind of scenario would be unlikely to shut down Colorado's marijuana industry — but with the Trump administration, all rules could be off?
It's not that all rules would be off. But traditional political considerations, arguments about federal versus states rights, those traditions didn't seem to apply in the election, and it's not clear how they might apply to governing.
Given that, what would you advise state-legal businesses in Colorado to do at this point in the hopes of preventing either legal action or becoming a target for law enforcement?
I hope every lawyer who works in this area begins by saying, "This is not a risk-free business. There are lots of risks involved even if there isn't a crackdown." What we're talking about is managing risk, not avoiding it. So to answer your question directly, I would say make sure you're fully compliant. Make sure that everything you're doing isn't only compliant with state law, but clearly compliant with state law. Make sure your licensing and everything is up to date — there are no gaps or problems. But also realize that may not be enough.
The reactions to the nomination of Jeff Sessions as attorney general have varied from "There's nothing to worry about" to "You should be very concerned." Where would you fall on that scale if you had a state-legal marijuana business?
There's a reason I'm a law professor and not a marijuana practitioner. This is something that's always involved risk, and people in the industry understand that. That risk is certainly higher in a Trump-Sessions administration than it was in an Obama-[former U.S. Attorney General Eric] Holder administration. How much more is still anyone's guess. It's totally unknowable at this point.
Election day 2016 was a really mixed blessing for marijuana. Marijuana on the ballot won almost everywhere. But marijuana as an issue under state rather than federal control may have suffered a setback, and the contrast between those two things will be interesting to watch going forward.