What Does 2018 Hold For Marijuana Legalization?

Senior Contributor
01.04.18 9 Comments

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Today Jeff Sessions is rescinding the “hands-off” approach the Obama administration took with state-level marijuana legalization. It sounds worse than it ultimately really is: All Sessions can do is order U.S. Attorneys to use their own discretion in whether or not to pursue drug charges against legal marijuana dealers. But it’s also the most concrete follow-up to the Trump administration’s chatter about marijuana, and Sessions has hosted people like Dr. Robert DuPont, who wants your doctor to test you for drugs no matter what, at the Justice Department to try and figure out a strategy.

This is a new era in the war on drugs — one that includes substances that states are choosing to legalize. As such, it’s a war the Trump administration likely to lose.

  • Marijuana laws have tended towards decriminalization and legalization: Just three states, Idaho, South Dakota, and Kansas, completely prohibit all marijuana use. Every other state has, at a minimum, decriminalized marijuana possession, usually in the context of medical use. Recreational marijuana is legal along the entire West Coast, Nevada, Colorado, Massachusetts, and Maine. Adding to the problem, for anti-marijuana advocates, is that these laws are usually put on the books by voters; 2016 was a banner year for marijuana on the ballot.
  • 2018 might be an even bigger year for state-driven legalization: Vermont, New Jersey, Delaware, Michigan, Rhode Island, Connecticut and Ohio are all taking up recreational marijuana initiatives in 2018. Oklahoma, Kentucky, South Dakota, Utah, and Missouri are looking at medical measures. But perhaps the most arresting is the enormous shift by Republicans in their attitudes, as Gallup found a majority of Republicans support legalizing marijuana for the first time, jumping nine points between 2016 and 2017. Even Trump thinks the states should be left to their own devices.
  • On the federal level, however, marijuana is still illegal and it’s unlikely to be made legal by Congressional action: The government still classifies marijuana as a Schedule I drug, which legally speaking means the government thinks it has “no currently accepted medical use and a high potential for abuse.” In other words, marijuana and opioids are interchangeable, as far as federal authorities are concerned. Sessions, meanwhile, has insisted marijuana causes crime and violence, even as his own interns call him out for being out of touch. However, it all comes down to that drug schedule, and that might be the real fight Sessions finds himself facing.
  • Congress doesn’t have to make marijuana legal. Technically speaking, anybody can ask the DEA to do it: Under the Controlled Substances Act, anybody, from a state government to a private individual, can petition the DEA to reschedule any drug. Even shifting marijuana to Schedule III would effectively end any motive for federal enforcement. It’s not out of the question that an organization will do just that, especially as marijuana legalization is increasingly chafing against other laws: Pennsylvania is currently facing a bizarre legal question now that medical marijuana is in the state. If you qualify for a medical marijuana card, you have to give up your guns — since, federally speaking, marijuana is against the law and criminals aren’t allowed to own firearms.

It’s clear where the momentum is, politically. It’s just a question of how that momentum manifests as 2018 rolls on, and state legislatures look at their budgets and the opinions of their voters.

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