Cannabis and the Candidates: Donald Trump

Bradley Arant Boult Cummings LLP

This is the second article in a three-part series focused on the intersection of the 2020 United States presidential election and marijuana policy. Each article will focus on the specific presidential candidates of the two major parties, and the eventual winner. Check back in November for the conclusion of this series.

The 2020 U.S. presidential election is underway, with many voters already casting their ballots under unprecedented circumstances. One of the many consequences of the country’s focus on the COVID-19 pandemic is that voters have not had the opportunity to hear from the candidates for president and vice president on the range of issues to which voters have grown accustomed during election years. Cannabis issues, at both the federal and state level, are no exception, garnering virtually no discussion from the candidates in the last six months.

Cannabis, however, remains an important issue at various levels of government, as evidenced by the myriad pending proposals in Congress and the five states considering legalizing medical or adult-use (often called “recreational”) cannabis this November. So that begs the question: What would President Donald Trump’s second term look like for cannabis policy?

The answer is far from clear given Trump and his administration’s drug policy decisions over the course of the president’s first term. These decisions range, on the one hand, from signing into law a bill federally legalizing hemp after decades of prohibition to, on the other hand, appointing a fierce opponent of cannabis legalization as U.S. attorney general. These decisions paint a potentially conflicting picture of the president, who once said all drugs should be legal, and his ongoing policy toward cannabis.

The answer to determining what a second-term Trump presidency would mean for cannabis legalization requires separating the president’s comments from his administration’s actions. The president has made conflicting comments on marijuana legalization throughout his presidency, but his administration has offered a steadier picture of where a second-term Trump presidency would lead. The short answer appears to be more of the same.

One of the Trump administration’s most significant cannabis developments to occur during his first term was signing the 2018 Farm Bill. This move legalized hemp creating a massive market for a crop that had been prohibited for more than 80 years as a federally controlled substance. Trump’s U.S. Department of Agriculture has further supported hemp by allocating significant resources into implementing the reform.

Although many industry advocates were troubled by then U.S. Attorney General Jeff Sessions’ decision to rescind the Cole Memorandum — an Obama-era policy of non-federal interference with states who have legalized marijuana — the suspected effect of the rescission has not been realized. In fact, current Attorney General William Barr has said that he is not interested in disturbing “settled expectations” as it concerns the Cole Memorandum era policy, even though it is no longer in effect. Seeing as how there have not been any large-scale federal raids of state-level legal cannabis businesses, it seems reasonable to assume this policy of federal inaction toward state legalization will continue.

On the campaign trail, rather than directly addressing cannabis policy, Trump portrayed himself as the criminal justice reform candidate. He has focused his message around the First Step Act, which ushered in federal sentencing reforms for certain drug offenses.

Trump’s own comments, in public and private, offer a mixed bag toward his views on cannabis legalization. For instance, in 2018, when asked if he supported a bipartisan bill to allow states to set their own marijuana policies, the president said, “I really do.”  But this contrasts with comments the president made at an August 2020 campaign rally urging Republicans not to place marijuana legalization initiatives on state ballots out of concern that it would increase Democratic turnout in elections.

During his first term, Trump has shown himself to be not so much a cannabis ally as much as a cannabis ambivalent. The president likely doesn’t think cannabis should be illegal, but he also seems willing to use the issue as a cudgel to rally his base. A second Trump term would likely mean more of the same, a lukewarm and at times inconsistent policy toward cannabis.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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