President Biden Sets Federal Cannabis Legalization in Motion

On drug policy, President Joe Biden is indisputably now one of the most consequential politicians in American history.

Demonized as one of the War on Drugs’ chief architects for sponsoring the 1994 crime bill that filled U.S. prisons with nonviolent drug offenders—a record that aged so badly even Vice President (and former prosecutor) Kamala Harris, attacked him on it—Biden on October 6 took the largest step of any US president toward legalizing cannabis.

In mid-afternoon tweets and a subsequent video, Biden borrowed a line drug-war reformists have been using for decades, calling current federal cannabis policy a “failed approach.” He announced pardons for “all prior federal offenses of simple marijuana possession,” and called on state governors to do the same for state charges (most cannabis arrests are for violations of state law).

He directed the Cabinet-level agencies overseeing federal health and criminal-justice policy to review cannabis’s classification under the Controlled Substances Act—currently Schedule I, “the same level as heroin—and more serious than fentanyl,” Biden observed. “It makes no sense.” He acknowledged “the clear racial disparities around prosecution and conviction.” And he hinted at more changes to come.

“Sending people to jail for possessing marijuana has upended too many lives–for conduct that is legal in many states,” he said. “Today, we begin to right these wrongs.”

Critics pointed out that the announcement does nothing for most people in trouble for cannabis. There are only an estimated 6,000 people in the federal penal system for cannabis possession, and Biden’s pardon won’t be extended to people convicted of cultivation or sales.

Further, full legalization is still years away, and is at serious risk if the White House or Congress swing to the Republicans. It will almost certainly require action from a Congress that’s proven near deadlocked on the issue to date, according to legal experts contacted by Cannabis Now.

Cynics also pointed out the timing: October, a month out from crucial midterm elections, the perfect time for an empty publicity stunt that’s more posturing than policy.

But the historic moment is still here. Just by observing the federal government’s classification of cannabis is absurd and wrong and by directing Cabinet-level agencies to investigating changing it, Joe Biden has now done more on cannabis than any president since Richard Nixon. Period.

“Dank Brandon,” the president’s weed-smoking meme alter ego, has arrived in reality. 

More Than Words

“I wouldn’t call the announcement symbolic,” said Scott Bloomberg, a law professor at the University of Maine who researches cannabis policy.

Scholars such as Bloomberg and Vanderbilt University’s Robert Mikos have taken a dim view of the line pushed by some legalization advocates that a president could legalize or reschedule solely through executive action—at least not without triggering challenges in the courts.

Instead, what Biden has is the bully pulpit. What he can do—and what he appears to be doing—is give Congress cover to change federal drug policy by producing scientific and legal arguments justifying that action. If Health and Human Services issues an opinion that Schedule I, which classifies cannabis as addictive and medically useless, is inappropriate, and if the Justice Department produces its own opinion that enforcing federal cannabis policy is impossible on the aggregate and harmful when harsh penalties are applied, then Congress should have an even easier time rescheduling.

“The President can’t wave a magic wand and legalize marijuana overnight; he has to use the power that Congress gave to the Executive Branch in the [Controlled Substances Act],” he said. Further, “pardoning marijuana possession offenders is an incredibly important and impactful thing to do. Encouraging governors to do the same is also incredibly important, as most marijuana offenders are in state prison systems.”

“This is the process that I think should take place, that should have taken place at least a decade ago,” added Douglas A. Berman, a law professor at Ohio State University’s Moritz College of Law and the executive director of the school’s Drug Enforcement and Policy Center.

And while President Biden may rightly be criticized by history for being slow to catch up with current science or even sound moral policy, politically speaking, this was probably the first opportunity, he added.

Congress needed to demonstrate that it couldn’t be trusted to pass meaningful legislation. Even relatively modest reforms like bills that would give cannabis businesses easier access to banks is hopelessly bottled up in an obstructionist Senate, where at least ten Republicans are needed to pass cannabis reform—and that’s if every Democrat is on board, which they are not.

In Berman’s view, Biden couldn’t realistically pursue championing cannabis reform before addressing issues that affect more Americans, including the ongoing COVID-19 pandemic, runaway inflation and surging energy prices—issues also connected to international crises such as the unprovoked war in Ukraine and an increasingly tense nuclear standoff with Russian President Vladimir Putin.

“Cannabis is just not first cut stuff,” Berman said. “I think he’s doing what he can.”

So Now What?

President Biden’s announcement was welcomed with open arms by the cannabis industry and its otherwise bearish investors as a rare example of good news in an otherwise dire period marked by enormous losses, cratering prices, a thriving illicit market and impossible state and federal taxes and regulations.

Stocks in publicly traded companies surged briefly Thursday on the news before settling down again on Friday. Press releases from c-suite types peppered reporters’ inboxes, praising Biden’s bold turn before turning the conversation back to material concerns like the stalled SAFE Banking Act. Which is to say: after Thursday’s high, Friday marked a return to earth and the difficult business of lawmaking along with a long list of unanswered questions.

The scheduling review could take six months to a year, by which time the Democratic Party may no longer be in control of Congress. The scheduling review could also likely produce recommendations cannabis advocates won’t like including separate schedules for CBD and high-THC products such as dabs, which could remain tightly controlled, suggested OSU’s Berman.

And the realities of actually legalizing cannabis—how to tax it, who to regulate it—are incredibly complex. These could take another presidential term to sort out, said Pat Oglesby, a former Congressional staffer and tax-policy expert who sat on California Governor Gavin Newsom’s blue-ribbon marijuana legalization panel.

“There hasn’t been much of a process” on legalization in Congress to date,” Oglesby said. “I think this is going to take a while, and if the Republicans win the House or the Senate, legalization is very likely out of the picture for the next two years.”

“This isn’t legalization, but it’s a big step. It’s showing the flag,” he added. “It’s a real sign to Congress that, look, it’s time to get moving.” And it’s the first sign from a president in many current voters’ lifetimes.