/>iThe title of this post comes, of course, from The Who’s classic track “Won’t Get Fooled Again.” This post analyzes whether there is cause for worry on the part of cannabis operators – both marijuana and hemp – under a second Trump presidency. So, I guess the first question is whether cannabis operators got fooled during the first Trump regime.
In my opinion, the short answer is no – in fact, marijuana operators were allowed to operate under policies similar to the Obama administration and the 2018 Farm Bill allowed for an explosion of the hemp industry. But the answer is also that the cannabis industry was complicated then and much more complicated now. With a new Farm Bill on the horizon – with a new Congress – and rescheduling hearings on marijuana scheduled early next year, along with the myriad issues sure to arise in the cannabis industry over the next four years, what will be the impact of a Trump presidency on critical cannabis questions? Let’s dive in.
Leading up to the 2020 election, we predicted what a Trump presidency would mean for the cannabis industry:
The answer is far from clear given Trump and his administration’s drug policy decisions over the course of the president’s first term. These decisions range, on the one hand, from signing into law a bill federally legalizing hemp after decades of prohibition to, on the other hand, appointing a fierce opponent of cannabis legalization as U.S. attorney general. These decisions paint a potentially conflicting picture of the president, who once said all drugs should be legal, and his ongoing policy toward cannabis.
The answer to determining what a second-term Trump presidency would mean for cannabis legalization requires separating the president’s comments from his administration’s actions. The president has made conflicting comments on marijuana legalization throughout his presidency, but his administration has offered a steadier picture of where a second-term Trump presidency would lead. The short answer appears to be more of the same.
One of the Trump administration’s most significant cannabis developments to occur during his first term was signing the 2018 Farm Bill. This move legalized hemp creating a massive market for a crop that had been prohibited for more than 80 years as a federally controlled substance. Trump’s U.S. Department of Agriculture has further supported hemp by allocating significant resources into implementing the reform.
Although many industry advocates were troubled by then U.S. Attorney General Jeff Sessions’ decision to rescind the Cole Memorandum — an Obama-era policy of non-federal interference with states who have legalized marijuana — the suspected effect of the rescission has not been realized. In fact, current Attorney General William Barr has said that he is not interested in disturbing “settled expectations” as it concerns the Cole Memorandum era policy, even though it is no longer in effect. Seeing as how there have not been any large-scale federal raids of state-level legal cannabis businesses, it seems reasonable to assume this policy of federal inaction toward state legalization will continue.
On the campaign trail, rather than directly addressing cannabis policy, Trump portrayed himself as the criminal justice reform candidate. He has focused his message around the First Step Act, which ushered in federal sentencing reforms for certain drug offenses.
Trump’s own comments, in public and private, offer a mixed bag toward his views on cannabis legalization. For instance, in 2018, when asked if he supported a bipartisan bill to allow states to set their own marijuana policies, the president said, “I really do.” But this contrasts with comments the president made at an August 2020 campaign rally urging Republicans not to place marijuana legalization initiatives on state ballots out of concern that it would increase Democratic turnout in elections.
During his first term, Trump has shown himself to be not so much a cannabis ally as much as a cannabis ambivalent. The president likely doesn’t think cannabis should be illegal, but he also seems willing to use the issue as a cudgel to rally his base. A second Trump term would likely mean more of the same, a lukewarm and at times inconsistent policy toward cannabis.
Earlier this year, profiling a matchup between Trump and President (and then Democratic nominee) Joe Biden, we reiterated our initial analysis and noted:
[W]e believe the same spirit is as true today as ever regardless of the occupant of the White House. We opened this piece by noting that we stridently seek to avoid taking partisan positions, but we’re going to call a spade a spade. The American people support cannabis liberalization. Neither candidate Trump nor candidate Biden seem to personally view the issue as top of mind, but nor will either apparently stand in the way of liberalization.
So, in the end, maybe all of this discussion was for naught. Maybe the results will be the same regardless of who calls 1600 Pennsylvania Avenue home on January 21, 2025. Maybe what really matters is who controls Congress, who controls the statehouses, and who controls the judicial branches that interpret the law.
We think that is probably about where we stand today. It’s noteworthy, but not necessarily dispositive, that then-candidate Trump recently expressed support for an amendment to the Florida Constitution that could have allowed for an adult-use marijuana regime. Posting on Truth Social, Trump stated:
As a Floridian, I will be voting YES on Amendment 3 this November.
The amendment, which would have allowed “adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption,” did not receive the requisite 60% of the vote to become law. Does Trump’s support of the Florida amendment signal his support of a nationwide policy of marijuana liberalization or does it reflect his view on an issue that he believes should be left to the states to determine? We shall soon see.
There are perhaps three more consequential developments for the cannabis industry in the coming months and years. First, who Trump chooses to run the agencies tasked with governing cannabis policy at the federal level – primarily, the Department of Justice, the Drug Enforcement Administration, and the Food and Drug Administration. Those regulators will have tremendous influence both on broad federal policies but also on day-to-day decisions regarding cannabis enforcement decisions.
Second, as we have written about extensively, the federal government is in the process of determining whether marijuana should be rescheduled from a Schedule I substance under the federal Controlled Substances Act to a Schedule III substance. The DEA hearing on the matter, originally scheduled for December 2, was recently pushed into early 2025. The consequences of the rescheduling decisions could be enormous, and there is no shortage of high-powered, well-heeled organizations expressing their opinions on the matter.
Third, Congress is due to pass a new Farm Bill. We predict that will occur after Trump is inaugurated and there is a Republican-controlled Senate. Although early proposals in House committees would have broadly outlawed non-industrial hemp, more recent proposals from (an albeit Democratic- controlled Senate) have pointed towards a policy of more closely regulating but not banning most hemp products. We recently put forth our own framework for how the marijuana and hemp industries can both win in the next Farm Bill, as we’re still hopeful legislators will consider that reasoned compromise.
Whenever there is a momentous change in the halls of government, there is the potential for momentous policy changes. That is certainly a possibility under the present circumstances, but if we were gambling persons (we are) we would bet that marijuana is rescheduled, that federal agencies continue a largely hands-off approach to enforcing state-legal marijuana programs, and that the Farm Bill allows for the continuation of a hemp program that includes certain products that produce psychoactive effects.
