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Bag of mariuana
Can President Joe Biden enact cannabis reform without congressional approval? That is the question tackled by the Congressional Research Service in response to the ever-louder call for action coming from the populace and Democratic politicians alike.
On the campaign trail, Biden promised cannabis reform and assured that not a single person deserves to be behind bars for possessing small amounts of marijuana for personal use. Nearly one year into his first term, the president has done nothing towards making true on his promise. Supporters of the president may choose to believe that Biden’s hands are tied and that he does what is possible for him at the moment, while detractors might be convinced that Biden is willfully choosing to maintain the criminal status of marijuana for nefarious purposes; this is what the Congressional Research Service is seeking to elucidate.
“Discussion of whether the President can legalize or decriminalize marijuana raises the question of what it means to ‘legalize’ a Schedule I controlled substance. ‘Legalization’ of marijuana could mean moving the substance from Schedule I to another schedule of the Controlled Substances Act (CSA) so that it would be legal to produce, distribute and possess marijuana for medical purposes, subject to the CSA’s registration requirements; or it could mean removing marijuana from control under the CSA altogether,” the report explains.
Two branches of government have the ability to reschedule or deschedule cannabis entirely, the Congressional Research Service reports: both the legislative (Congress) and executive (the White House) branches could in theory give the U.S. legal weed. The office of president itself does not grant the ability to directly reschedule or deschedule cannabis in the CSA, but this power is held by people who answer directly to the president. The Department of Justice (DOJ) and the Department of Health and Human Services (HHS), if they work in cooperation, have the authority to change the schedule of cannabis under the CSA. These two agencies delegate that power to the Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA) respectively, but they can either act by themselves or direct the DEA and FDA to deschedule or reschedule marijuana on their behalf.
Indirect Influence
The Congressional Research Service adds that, “although the President may not unilaterally deschedule or reschedule a controlled substance, he does possess a large degree of indirect influence over scheduling decisions. The President could pursue the appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS and FDA to consider administrative descheduling of marijuana. The notice-and-comment rulemaking process would take time and would be subject to judicial review if challenged, but it could be done consistently with the CSA’s procedural requirements. In the alternative, the President could work with Congress to pursue descheduling through an amendment to the CSA.”
Therefore, even though the president cannot change the legal status of cannabis through an executive order, Biden has levers of power immediately accessible to him and which could lead to the legalization or at least decriminalization of marijuana nationwide in the immediate future. His influence is immense; he could direct the people under his authority to work towards legalization; he could appoint people willing to pursue the correct agenda; he could introduce bills to Congress and use his sway over the Democratic Party, which controls both houses of Congress, to pass drug reform—assuming a bill could get past threats of a filibuster. After all, cannabis reform is explicitly a central tenet of the Democratic Party’s political platform and promise.
Mitigate the Consequences
That is not all: Changing the law is not the only way for Biden to exert the power of the highest office in the world. He can also mitigate the consequences of marijuana’s current criminalization using only presidential powers and privileges, such as the presidential pardon. “The President may grant a pardon at any time after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: The President may also issue a general amnesty to a class of people. It therefore appears that the President could provide clemency for some or all past federal marijuana-related offenses without making any changes to the CSA,” the Congressional Research Service's team explains.
While using the presidential pardon to grant clemency to the hundreds of thousands of Americans who see the inside of a jail cell every single year would be a very positive change, it would not impact future arrests made in the name of the very same laws. The report also addresses this: “In addition to, or instead of, granting clemency, the President could direct the Department of Justice to exercise its discretion not to prosecute some or all marijuana-related offenses. Although the DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct the DOJ as part of his constitutional duty to ‘take care that the laws be faithfully executed.’”
This is a lever of power that former President Barack Obama used; the DOJ was then instructed to not prosecute state-legal medical marijuana and instead prioritize higher-risk cases. This DOJ enforcement policy was rescinded by Donald Trump and, similarly, a Biden-issued policy could be rescinded by the next Republican president—but until another Republican sits in the Oval Office, this would save countless American lives if only President Biden chose to do the right thing.
According to a recent Gallup survey, support for nationwide marijuana legalization is at an all-time high of 68%, including a majority of Republican voters. Just 10 years ago, support for the full legalization of marijuana was lower than 50%. The idea has been soaring ever since, continuing to gain in popularity throughout Biden’s presidency. There is no doubt left as to what “the right thing” is, now. Cannabis reform is one of the most popular, bipartisan issues in modern times, and it is a promise made by the whole Democratic Party and Joe Biden himself.
He could; he should; but will he?