Las Vegas Sun

November 18, 2017

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Sun interview:

Will Trump crack down on legal marijuana? Brookings expert weighs in

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Doug Mills / The New York Times

President Donald Trump with Attorney General Jeff Sessions in Washington, May, 15, 2017. Trump’s administration is preparing to redirect resources from the Justice Department’s Civil Rights Division toward investigating and suing universities over affirmative-action policies deemed to discriminate against white and Asian-American applicants.

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John Hudak is a senior fellow at the Brookings Institution

When the Brookings Institution’s John Hudak visited Las Vegas in March, he said it was too early to tell whether the Trump administration would try to snuff out the legal marijuana industry.

So have things changed since then? That was the Sun’s lead question to Hudak, an expert on marijuana policy, when he returned this week.

Edited excerpts of the interview follow:

Compared to the last time you were here, if I’m someone who makes a living in Nevada’s legal marijuana industry should I be more worried about the news from Washington, or less worried. Or has anything changed?

There hasn't really been any change in terms of policy coming out of D.C.

It's not to say that worry shouldn't exist, because you have an attorney general who keeps saying quite a bit about marijuana policy and none of it is pro-marijuana, which is not really much of a surprise.

As recently as last week, he was talking about increasing enforcement and having the federal government play its more traditional role.

That said, he still hasn't done anything, and we are going on a year into this administration.

The attorney general certainly has the authority to start a pretty significant crackdown in recreational states, and (the fact) he hasn't done that suggests he is serious about thinking through his policy options. I think he's at least recognizing that his first intuition, which is to crack down, is not necessarily the best idea for him.

So with every week and every month that goes by maybe there's a little more hope that he'll leave existing policies alone?

I think that's right. With every month that goes by, it's another month that businesses aren't cracked down on.

But it's not as if the attorney general has to wait for something to make these decisions. Those are his and, in some ways, his alone.

So that, I think, is optimistic for the marijuana industry. But what's more, he has this commission that he has empaneled to deal with drug abuse broadly, but especially marijuana policy. They've begun making recommendations to him and he is, I assume, mulling them over. But again, his go-to response of cracking down hasn't happened, which I think is positive for functioning markets.

It's not to say crackdowns won't happen, and I definitely don’t think it means crackdowns shouldn't happen. I think there are some bad players in the industry. I know there are in other states, and I assume there are in Nevada. That's not a marijuana thing; there are bad players in any industry. And it's law enforcement's job to go in and fix that. The hands-off approach by the federal government in some ways has been a little too hands-off. And I'll bet as long as the DEA starts going after these bad actors and does so in a well-intentioned way, the industry is going to applaud that. They're going to applaud getting rid of the bad actors as long as they're also getting protection and recognition of their good actions.

What are these bad players doing?

The bad activities that the federal government is particularly looking out for would be money laundering and diversion of product either into a state's black market or across state lines. Those are the two big ones. In addition to that would be engaging in gun sales, the sales of other drugs and other types of organized crime activities.

Those things happen. I can't estimate at what scale — I don't think it's massive. But you also don't want one person to spoil it for everyone. So local and state governments work with the federal governments all the time to root these things out, and so do regulatory bodies. I think there's a good chance we'll see more of that.

You criticized Jeff Sessions for blocking research on cannabis. What action did he take and what ramifications will there be from that?

Right now, cannabis that is grown for use in federally approved research has to come from one source: a farm at the University of Mississippi.

In August of 2016, the DEA issued a guidance that said that they would relax that monopoly and allow other entities to begin applying to grow research-grade cannabis. These entities can only grow cannabis for federally approved research. They can't sell it, they can't contribute it to another state market.

And 26 entities, many of which are research facilities, have applied. But the attorney general, in testimony to the Judiciary Committee, suggested that he was unsure about safety protocols and didn't think there needed to be 26 new growers to fill demand from researchers.

But the reality is there doesn't need to be 26 new growers. There is no grant or contract program where the government is required to fund every applicant. He can pick whether you need one or two or five new growers — whatever it is, he can do that.

There are some suggestions out there that DEA isn't the stumbling block to this; the attorney general is the stumbling block.

This doesn't affect legal marijuana in Nevada or medical marijuana in Colorado, it affects science and research. And that is government coming between science and researchers, and it's actually very dangerous. It's something that's holding back a lot of questions from being answered.

What I've always argued is that if you oppose medical marijuana, you should demand that this research happen, because it could prove your point that there's no medical benefit for marijuana. And if you support marijuana, you should also demand that this research happens, because it could prove your point that there is a medical value.

There are a lot of controversial aspects to marijuana reform, whether it's medical or recreational. This should never be one of them, because this is about science and not about people getting high or shipping stuff across state lines.

What kind of gains have there been from that research?

There's been remarkable research done on marijuana, looking at things like PTSD, epilepsy, how it can help stroke patients or people with traumatic brain injuries. There's been a lot of work on glaucoma, pain management, and work on using medical marijuana to fight the opioid crisis. And that's one that I think has a lot of promise, not necessarily because marijuana is particularly effective for combating opioids relative to its effectiveness for other conditions but because we are losing so many people every day from the opioid crisis that I think people are looking for any way out of that. I think that if you ask a lot of people, "Would you rather a family member be using marijuana or opioids"?, there probably aren't too many people in America who'd say, “I'd rather they be using opioids.”

What was your opinion of President Donald Trump's action on the opioid crisis last week?

I think the president is showing he's serious about this issue; that even though health policy and things like that aren't necessarily the president's cup of tea, he realizes this is a crisis.

A lot of groups have been asking for this emergency declaration to happen, and President Obama did not do it. President Trump's own advisers suggested it wasn't necessary or prudent, but he felt that it was.

Functionally, what that emergency declaration will mean for policy is unclear right now. But I think from a rhetorical perspective, the president got criticized unfairly for this being a lot of window dressing and not a lot of teeth behind the policy. I actually think a president recognizing a problem like this, drawing attention to it, issuing an executive action about it and holding an event on it has meaning. It has effect. It's a signal to the rest of the federal government that this is on the White House radar. And this is a White House that doesn't communicate that all that well. Usually what the president is talking about is small-scale stuff or personal stuff or scandal-related thing. So that kind of signaling is powerful, and I applaud the president for taking that action.

The question now is, what is next? Is the president going to ask for a supplemental (funding action) from Congress, is he going to ask for increased funding for agencies of the federal government to be able to carry out the new powers that exist under an emergency action for public health?

I think it was a very good first step. We'll just have to see now if the White House follows through.

Back to Sessions, what forces or considerations are holding him back from cracking down on marijuana?

Primarily two things. The first is he has a lot of smart people around him who understand this a lot better than a senator of Alabama would, or a senator from any state.

That's not a knock on the attorney general's ability to do his job, but when you're moving from the Senate into running a very large Cabinet department you have new considerations. You have to think about things in new and different ways, and you have a new constituency. So there's a learning curve. I think not enough attention is paid to the fact that Cabinet secretaries generally learn on the job.

The second consideration is just resources. There are a lot of (legal) recreational marijuana companies and locations throughout the U.S., and there are going to be a lot more soon with California, Massachusetts and Maine coming online and as Nevada still ramps up. Every day that passes makes it harder for the Justice Department to shut down recreational marijuana, because the number of locations increase, the number of people involved in the industry increases and (government) resources stay the same.

For the attorney general, I don't think this is something he'd admit publicly but there is that recognition that this has gotten too big to close down entirely and we need to be a little more careful about how we spend our resources. And also, if the attorney general focuses disproportionate resources to legal, recreational marijuana, he's going to get criticized for not doing more about opioids, immigration and counter-terrorism.

One of the things the marijuana industry can forget from time to time is how big of a portfolio the attorney general has. If an attorney general who absolutely hates marijuana is asked to rank the problems in his portfolio, you'd have to assume that terrorism and opioids are higher than marijuana. So while marijuana irritates him, he knows at least politically Americans care about many other things he has to deal with before they want him to deal with marijuana.

Has the marijuana legalization reform movement slowed? Are people taking a wait-and-see approach?

No, it's still moving ahead quite powerfully. What we're starting to run into on the medical side is a moment where there are not a lot of states left that are prime targets. That is, you're getting into Bible Belt states where it's always seen as a really tough sell. And for organizations that are pushing medical marijuana, those are resource-heavy states and ones with lower probabilities of success. So you see some movement in the Tennessee Legislature right now, you see a ballot measure in Utah. There are these opportunities around medical that are coming up, so it hasn't stopped. But the numbers game is becoming a bit more challenging for the movement.

On the recreational side, you're seeing movement in places like Michigan for a ballot initiative, but you're also seeing legislative movement. Three bills were got pretty significant debate in the legislatures in Vermont, Connecticut and Rhode Island. All three ended up failing, one with a gubernatorial veto and the other two because they didn't get enough support. It appears it's dead in Connecticut.

But those state-level conversations are going to keep happening. So while you're not seeing huge ballot drives with the exception of Michigan, there is a lot going on in legislatures because you have eight states that legalized by ballot initiatives and you also have states that are politically and geographically positioned to be the next state (to legalize) and a lot of them don't have ballot initiative processes. So where I think the ballot initiatives are a much showier, public and attention-grabbing process, legislative politics is the opposite.

That's one of the reasons we don't see as much going on, because the venue for the discussion has changed.

You got some media coverage for a Twitter post regarding John Kelly's statements on the Civil War (“If John Kelly isn't a complete idiot, he's at least 3/5ths of the way there”). Can you expand on that?

The White House chief of staff was giving an interview to Laura Ingraham last night and made a very bizarre comment, suggesting the Civil War happened because there wasn't a willingness to compromise. He should know better. He's someone through his training has clearly studied military history. I think anyone with even a middle school understanding of American and Civil War history understands that compromises happened quite a bit to continue to treat African-Americans as property, not as people.

While my tweet was a bit snarky in calling the White House chief of staff an idiot, which I stand by fully, I think it speaks quite a bit to Mr. Kelly's character.

He gets a free pass on questions about his character because he's a former general. But the reality is when you combine those words with his attack on Rep. Wilson, which turned out not to be accurate in any way — and video evidence shows that — and some other comments as well as silence along the way in regards to the president's issues on race really start to make you wonder what his motives are.

Whether it is race relations in the African-American community, in the immigrant communities, I think we need to start asking the White House chief of staff a lot more questions about how he's steering the ship and what his views are on some of these really fundamental issues and fundamental American values.

As someone who is immersed in politics and the Beltway, are there things you see happening that you think other Americans should be paying closer attention to?

I think one thing that opponents and proponents of the president can both look at is just how much the president is getting done. I think oftentimes media paints the president as this feckless leader who doesn't know what he's doing and can't work with Congress and really isn't advancing an agenda because he's not doing it on his big-ticket items, like tax repeal and Obamacare repeal.

But he's filling a lot of judgeships and putting a lot of people on regulatory bodies. His pace of appointments is finally picking up. He's also engaging in regulatory rollback in significant ways.

My colleague Phil Wallach has a tracker on the Brookings website right now on the regulations that are being changed or reversed.

President Obama got a lot of credit and a lot of flak depending on which side it was coming from on the amount of regulatory activity that he took while in office without the role of Congress and without the role of an executive order. And I don't think President Trump gets enough credit for it — which could be good credit or bad credit depending on whether you like what he's doing.

Media coverage has been pretty scarce. I think, frankly, the president's not talking about it enough. I don't think he's ashamed of it, I think he's just so crippled from creating a message and then staying on point that most Americans don't have any idea the extent of what he's doing.