He did not articulate any new policy positions for the administration, which was good, because Donald Trump entered the White House with the best position on marijuana policy of any incoming president in modern history. Most notably, he has repeatedly said that states should be able to establish their own marijuana policies, without contradiction. He has also expressed support for legal access to medical marijuana, which Spicer mentioned.
Nevertheless, several media outlets leapt to the conclusion that the federal government is surely planning an all-out assault on state marijuana laws. I was also surprised to see that allies within the marijuana policy reform movement were also contriving a fight where none exists. According to a hyperbolic statement from one allied organization, "Spicer declared war on much of the cannabis community yesterday when he announced the Trump administration intends to engage in the 'greater enforcement' of federal anti-marijuana laws."
But Spicer did not “declare” anything. He was not proactively announcing a prepared, written policy on behalf of the Trump administration. Quite the opposite, he was reactively offering an impromptu, oral opinion on behalf of himself. Those are important distinctions.
Here is what Spicer actually said, which was in response to a reporter's question about whether the federal government would ramp up enforcement on recreational marijuana businesses:
“I think that’s a question for the Department of Justice. I do believe that you’ll see greater enforcement of it, because again, there’s a big difference between the medical use, which Congress has, through an appropriations rider in 2014, made very clear what their intent was on how the Department of Justice would handle that issue. That’s very different from the recreational use, which is something the Department of Justice will be further looking into.”
Even if one insists that Spicer was expressing policy rather than opinion, he did not express anyone's plans or intentions to do anything. Rather, he imparted a two-part civics lesson.
The first lesson involved the federal government’s policy on state medical marijuana laws. He highlighted the Rohrabacher-Farr amendment, a rider the Republican-controlled House added to a huge annual spending bill that Congress passed and President Obama signed in December 2014. This amendment — which has been renewed twice and is still law — prohibits the Justice Department from spending taxpayer money to interfere with state medical marijuana laws. This rider is currently attached to the huge spending law that is set to expire on April 28, and one of its sponsors, Congressman Dana Rohrabacher (R-CA), predicted to me on February 23 that Congress will renew and extend that large spending package, including all of its current amendments, through September 30.
Spicer's second civics lesson involved the federal government’s policy on recreational marijuana laws. He correctly observed that the Justice Department has the authority to determine the extent to which it enforces federal prohibition laws in states that have adopted recreational marijuana laws.
This spring, when Congress debates DOJ's and all other federal departments' budgets for FY 2018, Congress can double down on the Rohrabacher-Farr Amendment by also passing a similar rider known as the McClintock-Polis amendment. This provision, sponsored by Congressmen Tom McClintock (R-CA) and Jared Polis (D-CO), would essentially extend the same protection to the recreational marijuana laws that have been enacted in eight states.
Could the McClintock-Polis amendment really pass and solve most of our problems, one year at a time? Yes.
In July 2015, the Republican-controlled House narrowly defeated the amendment 206-222. If we pick up perhaps nine more votes, the amendment would pass in the House and move to the Senate, where it has a good chance of surviving (although the Senate has never held a roll-call vote on marijuana legislation).
According to a nationwide survey of 1,323 voters released last week by Quinnipiac University, a whopping 71 percent of voters "oppose the government enforcing federal laws against marijuana in states that have already legalized medical or recreational marijuana." In other words, 71 percent of U.S. voters support the McClintock-Polis amendment.
There is no logical reason for the Justice Department to escalate DEA raids on recreational marijuana businesses. Doing so would be politically unpopular, bad public policy, and the opposite of what Trump said throughout his campaign. And while freshly confirmed Attorney General Jeff Sessions might not share the president’s feelings, Spicer said in January that Trump trumps Sessions.
We can and should hope that Trump is a strong manager in this regard. But just in case he changes his mind, Congress should include the McClintock-Polis amendment in DOJ's next spending bill to ensure that the federal government respects all state marijuana laws, starting on October 1.