Just What Is Joe Biden’s Marijuana Policy?

It’s unfair and inaccurate to say that nobody likes President Joe Biden. After all, his disapproval rating is “only” 55.6% according to the most recent FiveThirtyEight analysis—but that’s cold comfort. Along with the increasing number of Democrats so disenchanted that they think Biden should only serve one term, it’s undeniable that the forty-sixth president has also deeply disappointed and angered drug-policy reform advocates, as well as most anyone connected with the marijuana legalization movement and/or the cannabis industry.

All this was true before last Thursday, when WNBA star and erstwhile Russian league player Brittney Griner was sentenced to nine years in a Russian prison, her punishment for the cannabis oil cartridges discovered in her luggage at a Moscow airport during a February search. In a statement, the president condemned the situation as “unacceptable” and demanded Griner’s release—and then was greeted by an avalanche of blowback from cannabis advocates.

They (rightfully) pointed out that you can still receive a lifetime prison sentence for cannabis possession in America, and that beyond a throwaway one-line quote in July, Biden hasn’t done anything to advance federal cannabis policy reform in his 18 months in the White House.

But is it fair to hate on Joe Biden for not breaking the Constitution (and opening himself up to hostile Supreme Court challenges) for not legalizing cannabis, something law experts recently told Cannabis Now he almost certainly cannot do? 

Maybe not, but at the same time, observers contacted for this article struggled to identify a coherent White House drug-policy reform policy—and could name several setbacks and disappointments that preceded any Griner-related hypocrisy. 

Less Talk, More Action Needed

In July, six progressive US senators asked the president to start moving on granting promised clemency to nonviolent cannabis prisoners—and by the end of the month, all the White House could muster was some version of, “We’re working on it.”

“We’re not getting what we need at the federal level, at all,” said Justin Dye, chairman and CEO of dispensary chain Schwazze, which has locations in Colorado and New Mexico. “I think the Biden Administration and the Democrats had a real opportunity over the last two years to get something done and win over a number of voters in favor of cannabis—and they didn’t do that.”

And when the White House has done something on weed, it’s usually bad. Lobbyists and members of activist circles in Washington D.C. pointed out some unforced errors, such as purging the White House of low-level staffers who committed the crime of honest and copped to smoking cannabis on questionnaires during his first few months in office—and then following that up with a 2022 directive discouraging employees from even owning stock in publicly-traded cannabis companies. All that makes some wonder whether Biden even truly wants to decriminalize, and whether that wasn’t just a campaign line cooked up to shut up progressives whose preferred candidates endorsed legalization.

“Does he really believe in decriminalization? Nobody really knows,” said one national-level observer, who asked to remain anonymous in order to speak freely. 

A Familiar Stalemate

At the same time, expecting Biden to solve the legalization question is to fail Civics 101. After all, making and changing laws (that would include the Controlled Substances Act) is Congress’s job. 

“We’re waiting for Congress to put legislation on his desk—after all, that’s the way things are supposed to work,” said Aaron Smith, executive director of the National Cannabis Industry Association. NCIA advocates for smaller businesses, and has been waiting in vain for the Senate to pass a version of the banking reform bills that have repeatedly passed the House of Representatives. 

“I couldn’t imagine a world in which that isn’t signed into law,” said Smith, who added that in most worlds—including ours—even modest cannabis policy reform would be an enormous nonpartisan win. 

For that familiar stalemate, Smith and others blame the intractable United States Senate more than the White House. And anyone keeping score would note that compared to President Donald Trump, whose first attorney general, former Alabama senator Jeff Sessions, put the industry on red alert with vague threats to prosecute state-legal businesses, Biden’s approach has at least been lawful neutral. 

He hasn’t interfered with state-legal businesses; he hasn’t sent federal law enforcement after anyone obeying state law; and legalization continues to spread across the United States without any federal interference.

At the same time, Biden has indeed thus far failed to fulfill a campaign promise to decriminalize marijuana and failed to free federal cannabis prisoners (though how many federal cannabis prisoners there are is unclear; as WeedWeek found, it’s probably way less than 40,000; most people in trouble for marijuana in America are punished under state law, which federal decriminalization would likely not affect.)

Maybe pinning hopes on Biden to legalize cannabis by fiat was naive and wishful thinking. Other observers have said that when confronted with a full plate of COVID-19, an infrastructure bill, climate change, and military conflicts in Afghanistan and now Ukraine, Biden simply does not have the time, energy or ability to make strides on cannabis. 

“Criminal justice reform is not a place where the president is going to try to spend political capital,” as Andrew Sidman, a political science professor at the John Jay College of Criminal Justice, told PolitiFact.

Joe Biden would not be the first president to fail to deliver on a campaign promise. Guantanamo Bay is still open and there isn’t a wall separating Mexico from the United States, stretching from the Gulf of Mexico to the Pacific Ocean. Still, if Joe Biden does have a clear idea what he wants to do on the extremely popular issue of federal cannabis legalization, he is doing a tremendous job keeping it a state secret—and, unless it’s “do nothing,” he’s also not getting it done.