President Obama has been politically artful in his approach to legal pot, providing states such as California with a road map on how to legalize. Donald Trump has said the decision should be left to states.
There’s no question Barack Obama has been the best president for the legalization of pot. By far.
But that’s a very low bar, say advocates such as Tom Angell, founder of the pro-legalization group Marijuana Majority.
Obama disappointed many activists by not reining in Drug Enforcement Administration (DEA) agents and federal attorneys who prosecuted medical-marijuana dispensaries. He also never endorsed legalization and didn’t do a lot to help pot merchants facing challenges with pesticide, tax and banking regulations because of federal prohibition.
Still, Obama has been politically artful in allowing legalization to proceed in pioneering states such as Washington and Colorado, said Rep. Earl Blumenauer, D-Oregon. He’s charted a course for other states to follow, without inciting a political backlash.
And with voters in California, Massachusetts and Nevada — and possibly Maine, pending final results — approving legal weed Tuesday, about 25 percent of the nation’s population will live in states with legal pot.
Federal prohibition appears impractical, if not impossible, Blumenauer said. Obama suggested as much in a recent interview.
President-elect Donald Trump has said, “I really believe you should leave it to the states. I think it should be a state issue.”
Obama’s great accomplishment, some say, was getting out of the way after voters in Colorado and Washington approved state-regulated pot production and sale in 2012.
“What he did was respect the democratic process,” said Seattle City Attorney Pete Holmes, a sponsor of Washington’s groundbreaking Initiative 502.
Obama didn’t try to quash state laws with federal pre-emption. And he didn’t prosecute legal pioneers.
Even then, Washington officials were not sure if they could implement and oversee a legal pot industry without federal opposition. “It’s easy for us to forget that we didn’t know what the feds would do,” Holmes said.
That uncertainty evaporated with the so-called Cole Memo in August 2013. Authored by U.S. Deputy Attorney General James Cole, the memo told Washington and Colorado they could carry out the voters’ will as long as they adhered to eight Department of Justice priorities, such as preventing sales to minors and preventing legal pot revenue from going to criminals.
“That memo in 2013 was doing two things. Superficially it was saying, ‘we’re watching you.’ But what it was really doing was providing a road map,” said Alison Holcomb, chief author of I-502. “It says, ‘by the way, states, here’s how you legalize.’ That’s huge, telling states what legalization looks like.”
The Obama administration followed up in 2014 with official guidance for how the banking industry could provide services to legal pot merchants without running afoul of Treasury Department rules for reporting money laundering.
“They’ve been elegantly cautious,” said Brendan Kennedy, CEO of Seattle-based Privateer Holdings, which announced last week that it has raised $122 million from investors for legal pot businesses.
“We never imagined the velocity with which this industry and the political landscape would change,” said Kennedy, whose firm markets the Marley Natural brand of cannabis products in California, Oregon and soon in Washington. Privateer also owns Leafly, a marijuana information and news service.
The vote in California, home to the world’s sixth-largest economy, is potentially a game-changer, Kennedy said. “When visitors to California see a fully implemented regulatory framework I think that will begin to change cultural perceptions,” he said.
But disappointments linger.
Blumenauer has been frustrated that the administration was not more aggressive in making sure federal agencies followed his example.
He called it “mind numbing” that a Native American teenager faced federal charges and a year in jail for possessing a gram of pot earlier this year before prosecutors backed down amid a storm of protest.
“We have people in the bureaucracy, particularly in the DEA, who are just in the Stone Age,” Blumenauer said.
Angell called it a big disappointment that Obama did not remove pot from the federal controlled-substances list where it resides alongside heroin as the most dangerous of drugs.
And, there’s the most obvious shortcoming of Obama’s strategy — the Cole memo is just a memo, not a change in federal law. It could disappear under Trump, although he’s said several times that he favors medical marijuana and that legalization should be left to states to decide.
There was political risk to Obama’s going further, Blumenauer said. “If he were to be more forthcoming he would’ve invoked more discord with the Republican-controlled Congress. It would’ve made it intensely partisan, would’ve made it harder,” he said.
And, Obama went further than any previous president in admitting his own youthful marijuana use and by saying pot was not as dangerous as alcohol.
In an interview last week with HBO’s Bill Maher, Obama reiterated his position that “legalization is not a panacea.” But he also went on to say that if California and other states legalized, “it’s going to call the question.”
With roughly one-quarter of the country under one set of laws and the rest under different rules, “that is not going to be tenable,” Obama said.
Angell said his organization plans to hold Trump to his pledges, particularly in light of polls showing a majority of Americans (though not Republicans) support legalization.
“Reversing course and going against the tide of history would present huge political problems that the new administration does not need,” he said.