President-Elect Joe Biden and the Future of Cannabis Policy in America

Bradley Arant Boult Cummings LLP
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Bradley Arant Boult Cummings LLP

This is the final article in a three-part series focused on the intersection of the 2020 United States presidential election and cannabis policy. Each article has focused on the specific presidential candidates of the two major parties, and the eventual winner. Read Part 1 and Part 2 of the series to get the full story.

After six weeks of post-election disputes, Joe Biden is set to become the 46th president of the United States next month. What does that mean for the cannabis industry in the short and intermediate term? Unfortunately, and frustrating to advocates and some in the industry, it may be too soon to tell.

On the one hand, Biden was far from the most pro-cannabis Democrat that was running for president this cycle. During his long tenure in the Senate, he championed several pieces of “tough on crime” legislation. For example, in 1986, Biden introduced the Comprehensive Narcotics Control Act, which sought to establish a cabinet-level office to coordinate the federal government’s drug enforcement policies, and in 1993, Biden sponsored the Violent Crime Control and Law Enforcement Act, a pre-cursor to the 1994 Crime Bill. With this track record, one might reasonably conclude that a Biden presidency would take a dim view of the cannabis industry. And, in fact, he does seem out of step with the majority of his party and U.S. voters more broadly on the question of legalization. For these reasons and others, it doesn’t seem likely that cannabis reform will be at the top of his agenda.

On the other hand, during the campaign Biden stated that his administration will pursue cannabis decriminalization, as well as seek expungements for people with prior cannabis convictions. In addition, Biden has stated at different points while campaigning that he supports medical cannabis legalization, the modest rescheduling of cannabis under federal law, and allowing states to enact their own cannabis laws. Biden’s pivot from support of tough-on-crime laws to support of decriminalization reflects both Biden’s evolution as a politician and more broadly the evolution of voters’ views on U.S. drug policy and laws.

There are a number of things President-elect Biden could do in terms of cannabis reform that stop short of full legalization. For example: 

He could reinstate a version of the Obama-era Justice Department memo that directed federal prosecutors to generally not interfere with state marijuana laws, which was rescinded by the Trump administration in 2018. It is also within the power of the executive branch to reschedule marijuana under the Controlled Substances Act. Biden has pledged to make a move to Schedule II, though that would not achieve many of the changes advocates seek.

Likewise, the president has the unilateral authority to grant acts of clemency, including pardons and commutations, to people who have been convicted of federal marijuana or other drug offenses. He also gets to appoint an attorney general, drug czar and other officials who will make decisions on how the federal government handles the issue — though many of those officials will be subject to Senate confirmation.

That last point is critical and a good place to point out that Congress may well play a more important role in shaping federal cannabis policy than the White House in the short term. Control of the U.S. Senate is still an open question, and one with significant implications for the future of federal cannabis policies. We won’t know the answer until at least January 5, 2021, when Georgia holds runoff elections to decide its final two seats. Control of the Senate may be as important as control of the White House when it comes to cannabis. Perhaps most importantly, the party controlling the Senate takes leadership roles in Senate committees. Democratic control of committees will make it far more likely that federal cannabis reform proposals – including, but not limited to the SAFE Banking Act, the STATES Act, and the MORE Act – will make it out of committee and to the floor of the Senate, where such legislation may pass in the same way that it has in the House of Representatives. If Republicans maintain control, Sen. Mitch McConnell is widely expected to maintain his opposition to allowing cannabis reform laws to see the floor of the Senate.

The evolution of Biden’s views on cannabis is likely a tacit recognition of the support these policies have among voters. Since 2012, when Colorado and Washington legalized cannabis for adult use, there has been a strong shift among voters of all political persuasions in favor of legalization. This year continued that trend, as voters in Arizona, Montana, New Jersey, and South Dakota legalized adult-use cannabis. In Mississippi and South Dakota voters legalized medical cannabis. South Dakota is the first state to legalize both adult-use and medical cannabis at the same time. This brings the total to 15 states and Washington, D.C. that have fully legalized adult-use cannabis, and 36 states that now permit medical cannabis in some form. The fact that adult-use cannabis is supported in states as politically diverse as South Dakota and New Jersey is further evidence of the broad appeal of legalization efforts and likely portends future adult-use and medical legalization efforts in more states.

Only time will tell. One thing that appears certain is that progress will be too slow for supporters and too quick for opponents. It does appear, however, that federal cannabis policy is continuing its inexorable, if deliberate, path towards loosening.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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