How Trump could take pot legalization away from Dems in 2020

With Speaker Nancy PelosiNancy PelosiOvernight Defense: Capitol Police may ask National Guard to stay | Biden's Pentagon policy nominee faces criticism | Naval Academy midshipmen moved to hotels Top Republican: 'Outrageous' to extend National Guard deployment at Capitol Progressives won't oppose bill over limits on stimulus checks MORE (D-Calif.) seemingly unable to control a fractured and unruly Democratic Caucus and the party’s presidential contenders doubling down on divisive identity politics and hare-brained socialist economic proposals, Republican strategists around town evince a newfound confidence about President TrumpDonald TrumpTrump State Department appointee arrested in connection with Capitol riot Intelligence community investigating links between lawmakers, Capitol rioters Michelle Obama slams 'partisan actions' to 'curtail access to ballot box' MORE’s reelection prospects in 2020. Especially with the Mueller investigation petering out without anything approaching a solid charge of collusion that could endanger the president, the hard leftward drift of Democratic leading lights has GOP party elders dancing for joy.

They should hold the celebration.


Democrats have an ace up their sleeve in the form of a cannabis-related STATES Act now making its way through Congress, and depending on how the Trump administration plays it, this seemingly innocuous piece of legislation on marijuana policy could end up determining whether the president wins or loses his reelection bid next year.

Those who understand the political time bomb cleverly embedded in the STATES Act know that this is no exaggeration. The ostensible purpose of the bill — whose lead sponsor is Sen. Elizabeth WarrenElizabeth WarrenPhilly city council calls on Biden to 'cancel all student loan debt' in first 100 days Hillicon Valley: High alert as new QAnon date approaches Thursday | Biden signals another reversal from Trump with national security guidance | Parler files a new case Senators question Bezos, Amazon about cameras placed in delivery vans MORE (D-Mass.), with strong support from another presidential contender, Sen. Amy KlobucharAmy KlobucharHillicon Valley: YouTube to restore Trump's account | House-passed election bill takes aim at foreign interference | Senators introduce legislation to create international tech partnerships House-passed election bill takes aim at foreign interference Klobuchar, Murkowski urge FTC to protect domestic abuse victims' data MORE (D-Minn.) — is to shore up the significant gains that the pot legalization movement has achieved in the face of the Trump Justice Department’s moves to use the federal Controlled Substances Act as a weapon to go after cannabis producers and consumers in states that have moved towards legalization.

But the real political purpose is crystal clear: to enable pro-pot ballot initiatives in virtually every swing state in 2020 that will tip the balance of the election in favor of the Democrats.

The STATES Act was conceived in the wake of misguided and politically myopic efforts on the part of then-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTanden withdraws nomination as Biden budget chief Manchin flexes muscle in 50-50 Senate Udalls: Haaland criticism motivated 'by something other than her record' MORE in 2017 to crack down on what he regarded as the morally ruinous trend toward legalization gaining momentum at the state level over the past decade, which Sessions saw as contributing to increasing disregard for law and order nationwide.

In response Sessions’ reversal of the Obama Justice Department’s “Cole memorandum,” which ruled out aggressive use of the Controlled Substances Act to enforce the federal marijuana prohibition and peel back state measures that have legalized pot in some form, cannabis advocates devised a strategy to preserve their gains and protect the thriving and lucrative pot industry by introducing the STATES Act in Congress — which would both mobilize the considerable cannabis constituency nationwide against Trump and provide a political platform for national candidates to highlight the issue.

But after a peeved Trump unceremoniously dumped Sessions last year and nominated in his place the level-headed William BarrBill BarrPolitics in the Department of Justice can be a good thing Majority of Republicans say 2020 election was invalid: poll Biden administration withdraws from Connecticut transgender athlete case MORE, the ostensible reasoning behind this defensive action collapsed. As Barr made clear in his Senate confirmation hearing when he said he would respect the Cole memo interpretation, the threat that a Trump Justice Department would move against the states on pot legalization became moot.


In the meantime, however, cannabis advocates became aware of the power of the STATES Act to unify their coalition and drive the vote on Election Day with the introduction of a variety of related ballot initiatives in crucial swing states.

Essentially, in formally opening the federal legality gateway for states to decide their own paths on pot legalization, the STATES Act greatly incentivizes state ballot initiatives to further liberalize, or clarify, state cannabis regulations. Already, Democratic strategists have initiatives ready to roll in Florida, Ohio, Michigan and Wisconsin, with more to follow in other key presidential swing states to drive overwhelmingly Democratic pro-legalization voters to the polls. If that happens, Trump could be cooked, even presuming a continued strong economy and no major foreign policy reversals.

But if they play their cards right, the president and his strategists have the chance to pull the rug out from under this ingenious plot, and turn the issue to the disadvantage of his Democratic opponents. By signing an executive order or presidential memorandum redirecting current administrative and prosecutorial resources for the Controlled Substances Act away from state-legal marijuana businesses and towards international trafficking and opioid and fentanyl trafficking, Trump would take the wind out of the sails of 2020 state ballot initiatives, depress Democratic turnout, and score a potentially bipartisan win on the crucial issue of opioid abuse in one fell swoop.

In signing the executive order (preferably with Sen. Cory Gardner (R-Colo.) standing behind him), Trump could commit to comprehensive federal marijuana reform in his second term, with the aim of allowing veterans and patients access to medical cannabis products across state lines as permitted under state law. Potential federal preemption of state laws in the promised second-term reform bill would undermine the rationale for state initiatives, and make potential opponents such as Sen. Warren look ineffective. The STATES Act would become inoperative, and pot advocates would redirect efforts away from the state level and instead look towards new potential action in the second term.

Coupled with encouragement of GOP state legislators in swing states to pass regulations neutralizing the need for ballot initiatives, this strategy could allow Trump to dodge this electoral bullet and avoid the fate plotted for him by shrewd Democratic operatives who are running circles around their GOP counterparts on the politics of pot legalization. But this will require savvy strategic thinking and good political advice from those close to the president — and right now, it is not clear who is in a position to provide that precious commodity.

Robert K. Wasinger is senior vice president, federal public affairs, for McGuireWoods Consulting. He was director of Senate and gubernatorial outreach for President Trump’s campaign, and has extensive experience on Capitol Hill, including as chief of staff and presidential campaign manager to former Sen. Sam Brownback (R-Kan.). Follow him on Twitter @RobertWasinger.