High hopes: what now for the cannabis ‘green rush’ under Trump?

Matthew L. Bishop - Associate Fellow, SPERI & Senior Lecturer in International Politics, University of Sheffield

Yet the flipside of an American federalism that grants the country’s 50 states unevenly distributed power is that such power is constitutionally protected, providing them with great leeway to legislate. Moreover, the people themselves in many states can exercise influence through the ballot initiative process, a form of direct democracy whereby a petition with significant support can occasion a vote on either a proposed statute or constitutional amendment.  In essence, the people can – and often do – circumvent their elected representatives to force legislative change.

While most attention on November 8th was concentrated on the presidential election, ballot initiatives on an array of issues were also placed before voters. After intense local political battles, eight states voted on measures relating to cannabis. California, Maine, Massachusetts and Nevada all approved recreational adult-use, thus joining the pioneers – Alaska, Colorado, Oregon, Washington (and the District of Columbia) – in moving towards the creation of legal regulated cannabis markets. Arkansas, Montana and North Dakota all voted in favour of medical cannabis initiatives, with only Arizona voting against, meaning a majority of states (28) now have medical programmes. This is, overall, a stunning victory for progressives (though Californians also narrowly voted to retain capital punishment at the same time).

So, how is the process likely to evolve under President Trump?

Domestically, because cannabis remains federally prohibited, state-level reforms rest only on executive indulgence: i.e. the Obama administration’s ‘hands-off approach’. They consequently remain highly vulnerable to federal pushback, and legalisation advocates are now profoundly concerned.

But as I’ve argued in previous blogs (here and here), the political economy that has driven the reforms up to this point is increasingly deeply embedded. Billions of dollars are being generated and, crucially, taxed.  Competitive pressures are provoking massive innovation, and fortunes made in the ‘green rush’ are financing intensified lobbying. The strain placed on an over-extended judicial and correctional system by unnecessary drug possession offences is being eased, and public opinion continues to favour reform.  Plus, the woefully under-researched, but apparently compelling, therapeutic benefits of cannabis are gradually becoming clearer.

There is little doubt, moreover, that the critical tipping point was California. Had the ballot initiative gone the other way, momentum could have halted.  But the state already has by far the largest (illicit) industry, the perfect growing conditions of the ‘emerald triangle’, enormous amounts of capital and know-how, and a huge, hungry market. In short: the broader pressures that sustain the impetus for legalisation are multiplied many times in California.

Trump’s options would consequently be limited were he inclined to oppose change. He is himself believed – if we can take his pronouncements at face value – to be an instinctive liberal on drug issues anyway. But there are in any case powerful structural forces now propelling the legal industry forward.  One crucial element – if we consider again the US Constitution – is that California’s vote will likely force the hand of Congress regarding the necessity of federal legislation to clarify the law nationally. Any president could oppose this. But Trump is unlikely to do so even – or perhaps especially – with a Republican majority in both the House and Senate, given conservatives’ (purported) abiding attachment to ‘states’ rights’ (and a federalism that just delivered the presidency).

Moreover, this is plausible – although certainly not inevitable – because cannabis legalisation is far from simply a domestic concern. It is also embedded within global regimes and processes to which the US has long been the central actor.

I recently published a SPERI Global Political Economy Brief – Negotiating Flexibility at UNGASS 2016: Solving the ‘World Drug Problem?’ – on this subject. The Brief reflects on the legacy of the United Nations Special Session (UNGASS) that took place earlier this year to address the creaking international governance architecture for narcotics, from which numerous states around the world are engaging in ‘soft defection’. Efforts to reform the various treaties that comprise the global drug regime and the increasingly indefensible prohibitionist logic underpinning them – which the US has been historically central to creating, enforcing and imposing on others – depend fundamentally on American action.

Yet the US is in a double bind because domestic cannabis legalisation places it in breach of its international commitments. Washington is therefore under severe pressure from other signatory countries to clarify its position and either uphold or reform the regime, but it is also under similarly severe pressure domestically to undertake some form of clarificatory federal legalisation.  If the latter occurs, its international discomfort will be even more pronounced than at present.

Something will have to give. With another UNGASS on drugs not scheduled until 2019, domestic imperatives – including yet more ballot initiatives – will ratchet up demands for federal action, with US policymakers broadly ignoring their international commitments. Few meaningful sanctions exist for such a powerful country beyond reputational damage.  It is also difficult to imagine prohibitionists still defending in 2019 the scheduling of cannabis as one of the most ‘dangerous’ drugs while the world around them is busily legalising and creating innovative uses for the plant.  This will undoubtedly cheer American proponents of reform, but as I argue in the brief, it will precipitate further fragmentation of the global governance regime, and exacerbate the divisions – as brilliantly analysed by James Cockayne and Summer Walker – between different groups of countries.

There is a further irony here: US hegemony, which was central to establishing the global drug regime and perpetuating it, will surely be necessary for any meaningful attempt to recast it, particularly in a more liberal direction and in the face of significant international opposition. However, although the US remains inordinately powerful, it is – as my SPERI colleague Craig Berry has argued persuasively – no longer truly hegemonic and actually finds itself in a period of pronounced post-imperial decline. No matter how ‘great’ Trump and his supporters believe it can be ‘made’ again, it appears – if the post-UNGASS 2016 fallout is any guide – to have neither the capacity nor the willingness (à la Kindelberger) to undertake such an endeavour.

This is especially so with President Trump at the helm. He could easily take either a hard-line conservative or radically liberal position on cannabis, but both would imply domestic and international danger, and the unwise expenditure of limited political capital on potentially unwinnable battles.  Muddling through at home and benign neglect abroad seem considerably more plausible.

In summary, it is striking how – albeit in this discrete and peripheral policy area – Trump’s options will be constrained by deeply rooted yet constantly evolving structures of (international) political economy, and the contours of the US system of government. This is, of course, why the Founding Fathers painstakingly built so many checks and balances into a Constitution that has survived intact for 250 years.  As The Economist recently pointed out: ‘The genius of America’s constitution is to limit the harm one president can do’. Amid the more iconoclastic proclamations of doom, that should give us at least a little faith about the extent of Trump’s agency in other areas of policy, even though such hope has been in desperately short supply of late.