Election results raised more questions than answers.
Trump won and drug legalization initiatives lost in four of five states on Nov. 5. But be careful about making overgeneralizations or betting on what the next administration is going to do about drug policy.
As someone who has researched drug policy for more than 20 years, here are five things that I’ll be keeping a close eye on over the next few years as we see how this plays out.
1. Details of future state ballot initiatives and bills on cannabis
Some form of cannabis legalization was on the ballot in four conservative states — Florida, Nebraska, North Dakota and South Dakota. In three of those states, it failed.
There are three observations worth noting. First, the Florida initiative got 56% of the vote but didn’t pass because constitutional amendments require 60% in the state. Second, while the North Dakota initiative didn’t get a majority (47.5% approved), it did better than it did in 2018 and 2022, when 41% and 45% approved, respectively. Finally, two initiatives allowing medical cannabis did pass in Nebraska, and with more than two-thirds support, though both are in legal limbo. Those who opposed cannabis legalization will claim some victories, but this will not be the end of cannabis policy at the ballot box.
These results, however, raise an interesting question: Might those drafting future cannabis measures for nonmedical use be better off taking a narrower approach to legalization than voters generally faced on Nov. 5? For instance, they could seek only to legalize flower and lower-potency cannabis products, disallowing some of the high-potency concentrates that deliver a lot of THC per inhale. It’d also be possible to limit supply to government-run stores or non-profit organizations instead of profit-maximizing businesses. Legalization has generally been an all-or-nothing fight in the U.S., but maybe we’ll see more nuance in the years ahead — as we have seen in other countries.
2. Psychedelics are another thing
In Massachusetts, a psychedelics initiative was defeated; only 43% of voters approved it. The measure would have gone further than initiatives that did pass in recent years in Oregon and Colorado. The Massachusetts measure would have allowed for the supervised use of psilocybin, psilocin, mescaline, DMT and ibogaine; it also would have allowed adults to grow and give away all these substances to other adults. Oregon, by contrast, only legalized supervised use of psilocybin.
Despite the FDA’s recent rejection of an application to allow MDMA-assisted psychotherapy — a drug that is sometimes classified as both a stimulant and psychedelic substance — as a treatment for PTSD, there’s still a lot of existing and emerging evidence on using various psychedelics to treat different mental health conditions which will keep this on the policy agenda. State and local moves to liberalize their approaches to various psychedelic substances are not likely to end anytime soon.
RAND research on this issue has highlighted multiple options for jurisdictions considering alternatives to prohibiting their use for nonclinical purposes — some of which have been introduced into state legislatures. There are pros and cons with all these options, but there will be more ballot initiatives and bills on this topic in the coming years. The question is whether these too will have a narrower focus — like exclusively psilocybin? — or perhaps more guardrails. For instance, will potential consumers have to undergo a health screening and/or take an educational course before legally obtaining psychedelic substances, as was recently proposed in New York?
3. What will the feds do?
It can be easy for the public to forget that all the cannabis stores and most of those growing and supplying psychedelics for nonclinical purposes are still in violation of federal law (there are some religious exemptions for some psychedelics). So far, federal decision-makers have largely stayed on the sidelines. But with a new attorney general (the Department of Justice oversees the Drug Enforcement Administration) and a GOP-controlled House and Senate, that could change.
It is hard to imagine a federal crackdown on cannabis given that more than half the U.S. population lives in states that have passed cannabis legalization for nonmedical purposes. Public support for legalization hovers around 70%. And given Trump’s public support for the legalization initiative in Florida, it’s possible the feds will make it easier for states to liberalize their cannabis laws. This could range from simply providing guidance and information about best practices to reclassifying cannabis under the Controlled Substances Act. It could also include changing other federal cannabis laws.
It's harder to predict a federal response for psychedelics since we are in the infancy of state reforms and these substances are not used by nearly so many people. Federal decision-makers have a lot of options, ranging from stepping up enforcement to making it easier for states to liberalize their policies. One approach could involve having the Justice Department produce a guidance memo indicating which products or actions it will tolerate and which will be targeted for enforcement under federal law. For example, Justice could make it clear that supervised consumption, if licensed by the state, or home-grow models would not be a high priority, but that companies selling or promoting these products without FDA approval would be.
4. What will the White House do with the ONDCP?
The Office of National Drug Control Policy (ONDCP) plays an important role in coordinating the federal response to existing and emerging drug problems as well as generating data for research and analysis. In fact, the ONDCP Director used to be a member of the president’s cabinet, but this changed during the Obama administration.
During the previous Trump administration, the White House proposed cutting the office’s budget by 95% from $388 million to $24 million. While this cut didn’t materialize, the office played a diminished role.
RAND research noted that the office has played a more active role in recent years under Biden and it would be important to continue to work closely with the U.S. Department of Health and Human Services, the Justice Department and other federal entities to help prioritize how federal funds are spent to address drug problems. The bipartisan, bicameral and multiagency Commission on Combating Synthetic Opioid Trafficking recommended in 2022 that the director of the office rejoin the President’s cabinet. Still, it is unclear what will happen in the new administration.
5. The Affordable Care Act and Medicaid waivers
The Affordable Care Act (ACA) massively increased access to treatment for substance use disorders and other health conditions, and there is also evidence suggesting it was associated with a decrease in criminal recidivism. And while the “federal Medicaid statute generally prohibits the use of federal Medicaid funds to pay for the health care” of incarcerated individuals, this is starting to change.
Over the past few years, an increasing number of states have also requested (and received) federal waivers to allow Medicaid funds to pay for services like substance use disorder treatment during incarceration and support continuity of care as they transition into the community.
The ACA could become a target for repeal again, as it did in 2017. If that does happen, the question is what would replace it? There are also questions about what would happen with Medicaid waivers and treating people with substance use disorders who are incarcerated.
Bottom line: Be careful about overgeneralizing about what lies ahead on drug policy. Some states will continue to consider proposals to liberalize laws on cannabis and/or psychedelics, but whether these efforts will pass is a big unknown. Whether the next administration supports or hinders these state efforts, as well as their approach to increasing access to substance use disorder treatment, also remains to be seen. Pay close attention to the details and don’t be surprised if you start seeing some proposals that are more restrictive than what has been previously considered and implemented.