President Obama’s Legacy on Marijuana: A Tale of Two Terms

Those in the cannabis law reform community had some reason to be hopeful as Senator Barack Obama became President Barack Obama in January 2009. As a candidate for Senate and for President, Obama had given lukewarm support to the notion of decriminalizing marijuana.

But many soon gave up hope on Obama when it came to marijuana law reform as he showed himself to be less than progressive on the issue.

Laughter and Raids

“Early on in the Obama administration the president seemed to treat marijuana smoking and marijuana legalization as a joke, refusing to treat it as an important, serious policy issue for the country to address,” Keith Stroup, the founder of NORML, told The Marijuana Times.

Evidence of this came out early during one of Obama’s online town halls, which were events he held frequently during his first term to answer questions from people on the Internet. During those town halls, the question of marijuana legalization invariably dominated the online voting.

“We took votes about which questions were going to be asked and … three point five million people voted. I have to say that there was one question that was voted on that ranked fairly high and that was whether legalizing marijuana would improve the economy — (laughter) — and job creation,” Obama said during a town hall in May 2009. “And I don’t know what this says about the online audience — (laughter) — but I just want … this was a fairly popular question; we want to make sure that it was answered. The answer is, no, I don’t think that is a good strategy — (laughter) — to grow our economy. (Applause.)”

But soon the laughing stopped and the worry began as Obama’s Justice Department launched an all-out assault against medical marijuana providers in states like California and Colorado. Things got so bad that even Obama-loving Rolling Stone was running headlines like “Obama’s War on Pot.” The Nation, another “progressive” publication, used the same headline the following year (2013).

In those years I wrote dozens upon dozens of articles on the Obama medical marijuana crackdown, including this call for then-Attorney General Eric Holder to put a stop to the raids. To say marijuana advocates were perplexed would be an understatement. A progressive president with seemingly nothing to gain by wiping out access for medical cannabis patients was attempting to do just that; or at the very least he was turning a blind eye while the Justice Department did it in his name. But why?

Sadly, we never got a satisfactory answer to that question. But President Obama did get a second term and with it the crackdown faded away.

Obama’s Second Term: A New Hope

With Obama’s second term came a slackening of the medical cannabis crackdown. And with some nudging from Congress, restrictions were put on the Department of Justice to keep them from continuing the assault on MMJ providers.

The famous “Ogden Memo” gave way to the “Cole Memo,” which said the feds expected states that legalized marijuana – as Colorado and Washington had just done – to set up strict regulatory oversight of the industry. Many saw this as a concession to let states decide their own policy on cannabis and time has shown this to be the case. While marijuana raids by the feds have remained sporadic, they have not gone back to the levels seen in Obama’s first term.

“President Obama has given the marijuana legalization movement a historic gift by allowing the various states to experiment with different models of marijuana legalization without federal interference,” Keith Stroup said, looking back on Obama’s Presidency. “It has given us the opportunity to demonstrate that ending marijuana prohibition and legalizing the responsible use of marijuana is an option that works well, with few if any unintended consequences.

“Any prior president, faced with a handful of states trying by voter initiative to forge their own way forward with state regulatory systems, would have had their Justice Department go into federal court and seek an injunction to enjoin the laws licensing the commercial cultivation and sale of marijuana, under the Supremacy Clause of the US Constitution. Most legal observers believe this would have been a successful tactic to shut down those existing regulatory schemes.

“A state has no legal obligation to mimic federal criminal laws, so the feds could not require a state to maintain criminal penalties for a marijuana offense. So a state can legally decriminalize all marijuana offenses under state law. But when a state and federal law are in positive conflict, such as state licensing laws for commercial growing and selling marijuana, the federal law supersedes the state law.”

Obama’s Legacy and Where Do We Go from Here?

“I would say that, on the positive side, Obama supported the rights of states to make their own decisions about marijuana policy and appointed people who, for the most part, supported that as well (e.g. Eric Holder and James Cole),” Amanda Reiman, Manager of Marijuana Law and Policy at the Drug Policy Alliance, told The Marijuana Times. “However, he often passed the buck when it came to taking a strong stance on descheduling marijuana or legalizing it on the federal level, stating that this was up to Congress. His criminal justice reform agenda moved us forward on the issue, but lacked any true protection against the incoming administration in terms of losing ground and reverting back to a 1980’s style drug war. We can only hope that the gains we made under Obama will be enough to maintain our victories in the coming years.”

While many in the marijuana law reform community are grateful that President Obama softened his stance on cannabis in his second term, they also lament the fact that he could have done so much more. He could have been the president that helped end marijuana prohibition in the U.S.; he just never seemed that interested.

“[An] important thing President Obama has done is to commute the federal sentences of more than 1,000 non-violent drug offenders,” Keith Stroup said. “He recognized the incredible damage done to so many lives in this country by mandatory sentencing laws and overly harsh drug sentencing. There remain far too many non-violent drug offenders in state and federal prisons, but President Obama has shown the courage to at least begin to address this problem.

“The biggest disappointment of the Obama Administration is their failure to reschedule marijuana to a lower schedule under the federal Controlled Substances Act; or better yet, to de-schedule it altogether, like alcohol and tobacco, although this latter option would have required the approval of Congress. Obama could have ordered his Department of Justice, and the DEA, to remove marijuana from Schedule I to a lower schedule, which would have reflected science more accurately and made it far easier for researchers to both obtain marijuana and get their marijuana research approved by the federal government.”

As President Obama’s time in office comes to an end, there is still time for him to do more; there is still time for him to shore up his legacy when it comes to cannabis.

“Obama has been the best president ever for marijuana policy, though it’s an extremely low bar,” Tom Angell, the founder of Marijuana Majority, told us. “In truth, the administration’s approach to cannabis has been somewhat all over the map. Probably the best thing he did was simply get out of the way so that states could implement their own policies and show the world that legalization works. But his administration also ignored science and continues to pretend that cannabis belongs in a category for drugs with no medical value. There’s still time before this president leaves office to accomplish rescheduling, and he could also provide mass commutations and pardons to people who have been unjustly punished under marijuana prohibition. But time is running out.”

Depending what comes from the Trump Administration in the near future, we could soon be looking back at President Obama’s ambivalence as the “good old days.” Hopefully we will be able to look back at Obama as the president who got things rolling in terms of the federal government leaving the states alone to determine their own cannabis laws.