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An Attorney General Jeff Sessions could be a total nightmare for weed

Elena Scotti/FUSION

Out of all the reasons not be a fan of the Ku Klux Klan, Sen. Jeff Sessions (R-AL) chose the most innocuous. President-elect Donald Trump’s nominee for Attorney General once said that he actually thought the KKK “were okay until I found out they smoked pot.”

Sessions later said he was kidding, but the underlying core of what he was saying still rings true today: Sessions is both profoundly racist and notoriously anti-marijuana. He has spoken in consistent and grave terms about what he sees as the dangers of legalizing weed. And, if he is confirmed by the Senate—which most observers think he will be—he will be tasked to lead the Department of Justice, which, under President Obama, has taken a hands-off approach in states that have legalized medical and recreational marijuana.

Now, advocates fear that with Sessions at the helm, the War on Drugs will be ramped up sharply.

“What is probably most likely under Sessions is that the federal government will conduct more raids and interfere more with what states are doing with marijuana legalization of all classes and types,” Bill Piper, the senior director national affairs at the drug reform advocacy group Drug Policy Alliance told me in a phone call.

The implications are potentially game changing for the emerging marijuana industries, which currently operate to some capacity in 28 states and the District of Columbia.

The industry does have some potential protections. One is the fact that the federal government can’t mandate that state and local officials make arrests to enforce federal laws. Second, Piper said, the Drug Enforcement Agency—which Sessions will likely soon be leading as Attorney General—doesn’t currently have enough staffers to conduct all the raids that it wants.

In 2009, the Obama administration ordered the DEA to stop raiding medical marijuana dispensaries, so long as they were operating according to state laws. Since then, the marijuana dispensaries have been operating in a gray zone: Illegal but not technically enforced under federal law, and legal under state laws.

With Sessions at the helm, though, this delicate balance is in jeopardy.

“I wouldn’t want to be a dispensary owner with [Sessions] at the DOJ, that is for sure,” said Piper.

The prospect of more raids and harsher enforcement at the federal level would also exacerbate racial disparities in marijuana arrests that persist even in places where it has already been legalized.

It’s unclear if Trump—who has promised to be the “law and order” candidate—would give the DEA more resources to do all the raids in order to enforce the federal laws. But even a small number of raids could significantly set the multi-billion dollar industry back.

Even as it’s been growing quickly, the industry has suffered from an inability to get access to credit, and for people involved in the industry to take business deductions on their taxes, since it’s still technically illegal at the federal level. It’s basically been operating as a cash-only business, in hopes that Congress or the DEA or anyone will take steps to liberalize the industry.

Federal raids on dispensaries would dash those hopes and shake up all the confidence that investors have in legitimate marijuana businesses. Even this early in the nomination process, the industry is freaking out about the prospect of having Sessions in this position of power.

“It appears that [Sessions] is intent on rolling back policy to the 1980’s Nancy Reagan’s ‘just say no on drugs’ days,” Aaron Herzberg, general counsel at real estate focused marijuana company CalCann Holdings, told CNBC. “With the selection of Sessions as attorney general the legalization or marijuana both for medical in 28 states and recreational marijuana in eight states may be in serious jeopardy.”

The profound irony of all this happening under Sessions would be that all of these states have voted to ease up on marijuana policy, in spite of the federal government’s regulations. Cracking down would be a profound federal intervention into the rights of states to look after their own affairs—supposedly the sort of intervention that Republicans used to fight.

Piper told me that in the best scenario, the states will refuse to collaborate with the federal government on enforcement, and that the feds will become overwhelmed by the sheer size of the industry that they suddenly want to crack down on.

“The states are hopefully going to follow the will of the voters where it’s most clear,” said Piper. “This decision could really take us back to the worst times of the drug war, and a lot is depending on how the states choose to work with the federal —or not—to determine which direction we want to move in as a nation.”