How Trump could take pot legalization away from Dems in 2020

With Speaker Nancy PelosiNancy PelosiObama chief economist says Democrats should accept smaller coronavirus relief package if necessary The five biggest challenges facing President-elect Biden Democrats were united on top issues this Congress — but will it hold? 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 John TrumpTrump rages against '60 Minutes' for interview with Krebs Cornyn spox: Neera Tanden has 'no chance' of being confirmed as Biden's OMB pick Pa. lawmaker was informed of positive coronavirus test while meeting with Trump: report 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 WarrenInequality of student loan debt underscores possible Biden policy shift Thomas Piketty says pandemic is opportunity to address income inequality The Memo: Biden faces tough road on pledge to heal nation MORE (D-Mass.), with strong support from another presidential contender, Sen. Amy KlobucharAmy KlobucharHillicon Valley: YouTube suspends OANN amid lawmaker pressure | Dems probe Facebook, Twitter over Georgia runoff | FCC reaffirms ZTE's national security risk Democrats urge YouTube to remove election misinformation, step up efforts ahead of Georgia runoff YouTube temporarily suspends OANN account after spreading coronavirus misinformation 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 SessionsAlabama zeroes in on Richard Shelby's future Tuberville incorrectly says Gore was president-elect in 2000 Next attorney general must embrace marijuana law reforms 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 BarrNew DOJ rule could allow executions by electrocution, firing squad Clyburn: Biden falling short on naming Black figures to top posts Five federal inmates scheduled for execution before Inauguration Day 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.