Update Feb. 8: Jeff Sessions has been confirmed as attorney general. This story originally ran on Jan. 13.
On Jan. 10, Alabama's Jeff Sessions sat down for a 10-hour confirmation hearing where he was grilled about his possible role as the next attorney general of the United States.
He was asked not only about how he would enforce laws related to immigration and abortion, but also about the proliferation of marijuana in states across the country.
"One obvious concern is that the United States Congress has made the possession of marijuana in every state and distribution of it an illegal act," he said to Utah Sen. Mike Lee, regarding whether he'd enforce federal law as it relates to cannabis. "It's not so much the attorney general's job to decide what laws ought to be enforced. We should do our job and enforce laws effectively as we're able."
In his comments to Sen. Patrick Leahy from Vermont, he stated that money and resources are an issue when it comes to whether he's able to enforce federal law regarding marijuana. Neither statement clarifies exactly how Sessions will respond to the spread of legal cannabis systems across the U.S. — but advocates are worried.
Why marijuana advocates are concerned about Sessions' appointment
"We were not reassured at all by what he said," said Lynne Lyman, California state director for the Drug Policy Alliance, the organization behind the proposition that legalized marijuana in the state.
"I would have rather seen him say that he respects state efforts to change the way that they regulate marijuana in their jurisdictions," Lyman explained. "So if he gets the funding, he’s coming, essentially, is the message."
But the concerns about Sessions' response to marijuana legalization as attorney general go beyond his comments during his confirmation hearings. On April 5, 2016, during a meeting of the Senate Caucus on International Narcotics Control, he spoke about his concerns regarding recreational cannabis.
“I mean, we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized. It ought not to be minimized, that it's in fact a very real danger,” Sessions said. "Lives will be impacted. Families will be broken up. Children will be damaged because of the difficulties their parents have, and people may be psychologically impacted the rest of their lives with marijuana."
He said that he thought that allowing the proliferation of legal marijuana was one of President Barack Obama's biggest failures — and that "good people don’t smoke marijuana."
Whether those comments indicate how he'll enforce federal laws as attorney general is unclear.
Sessions can impact the legal marijuana market in California
To understand what's possible, it's important to know that marijuana is still considered a Schedule 1 controlled substance — that means that it's still illegal under federal law. In fact, even in California, people can still be arrested and sentenced for extended periods of time by the federal government for possessing and growing cannabis.
"What a lot of people don't realize is even though it's effectively impossible to fully suppress a black market, it's really not hard to shut down a licensed above-board business," said Jon Caulkins, a professor at Carnegie Mellon University's Heinz College and the author of "Marijuana Legalization: What Everyone Needs to Know."
Those licensed above-board businesses are what people are working to get up and running in California.
"If the current administration wanted to, they could force everything back into the black market," Caulkins said.
He explained that if, as attorney general, Sessions wants to begin enforcing federal law, he could. That means that people could be arrested — and that stores and grow operations could be raided. But, Caulkins said, before they theoretically do any of that, they'll likely just send letters telling people to shut down.
"The DEA has not investigated individual users of marijuana, cocaine, heroin or anything else, except in very strange circumstances," Caulkins said. "That's not the business federal law enforcement is in. Federal law enforcement only goes after suppliers."
He explained that it will be easy for the federal government to figure out which legal businesses to target as licensing systems have helped track who's involved.
The marijuana industry has flourished under the Obama administration
Currently, 28 states have medical marijuana programs, while eight have legalized it recreationally, showing just how well the industry has done under the Obama administration. But the whole setup is tenuous.
Obama hasn't made marijuana any less legal on the federal level, but two things happened during his presidency that people in the industry have staked their chances of survival on.
There's the issuing of the Cole memo, which sets out guidelines for federal enforcement activity regarding states that legalize marijuana. The industry has interpreted it as a pass to operate in good faith if they follow certain guidelines and state law — but because it's just a memo, it can be torn up by Trump if he wants, said Caulkins.
The other is a bill known as the Rohrabacher-Farr amendment. It blocks the use of federal funds to "to supersede State law in those States that have legalized the use of medical marijuana." It needs to be renewed by Congress each year and has had bipartisan support the past few years.
But all of that could come to an end
We don't know what'll happen, but if you want to know what it's like when an administration doesn't turn a blind eye to the marijuana industry, you can take a look at the Bush years in the mid-2000s.
"It was kind of a war of attrition," said a Los Angeles-based marijuana grower, who requested anonymity for fear of being arrested. "There would be waves of arrests. And then new shop openings would take their place and then waves of arrests, and then, you know, it was just a war of attrition. They would shut people down and new people would open up."
Now, the marijuana industry is much more entrenched than it was during the Bush years, with established recreational and medical systems in multiple states.
The cultivator said that he hopes that if the federal government decides to enforce federal law that California steps in to protect the system that has been put in place here.
Ask Caulkins about what's going to happen and he won't make a prediction. But, he's bearish on the whole thing, "I think anybody would be absolutely crazy right now to put any money into any new business. Until people know what Trump/Sessions are going to do, it'd just be stupid to invest at this point."
Whether Trump and Sessions will spend their political capital going after the marijuana industry is unclear — and remember, it might not even happen at all.