Joe Biden did not campaign on legalizing marijuana but it is possible, maybe even likely, that the federal prohibition of marijuana ends under President-Elect Biden’s watch. That is because Biden is likely to appoint pro-marijuana politicians to key cabinet positions.
Congress crafted the Controlled Substances Act (CSA) in the 1970s to be a comprehensive federal drug law. The CSA places substances on certain schedules based on their danger to society. Schedule I is reserved for substances that are so dangerous that they cannot be used even under medical supervision. Marijuana is a Schedule I substance, alongside heroin and meth.
The CSA gives authority to the U.S. Attorney General and the Department of Health and Human Services (DHHS) to remove a substance from a given schedule. The Attorney General delegates its power to the Drug Enforcement Administration (DEA) and the DHHS delegates its power to the Food and Drug Administration (FDA). The President has the power to appoint and remove the Attorney General and the heads of the DHHS, and in turn the DEA and the FDA.
Considering the power that the Attorney General and head of DHHS with regards to the CSA, it’s important to note who Biden is considering for these cabinet positions. Politico provided a list of the potential cabinet appointments. We’ll take a look at where they stand on legalization.
Doug Jones. Doug Jones ran as Hillary Clinton’s running mate and also took Jeff Sessions seat in Congress. Doug Jones has spoken openly about his stance on medical cannabis. He supports the use and legalization of medical cannabis. He is also supports the decriminalization of marijuana.
Xavier Becerra. Xavier Becerra is the attorney general for the state of California. When Jeff Sessions repealed the Cole Memo in January 2018, Xavier Becerra criticized the move and vowed to uphold California state law. In addition, as California’s top lawyer, Becerra sided with a licensed marijuana business in its lawsuit against Santa Cruz County over whether or not marijuana delivery was permitted without a license from the county in light of regulations issued by the Bureau of Cannabis Control (BCC) allowing deliveries across the state. However, Becerra also oversaw a large sale eradication effort focused on illegal marijuana grows in California, which drew praise from California police. Becerra has shown that he is willing to stand up for and enforce The question is whether or not he would push for legalization at the federal level.
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Sally Yates. Sally Yates briefly served as acting attorney general in 2017, after working in the Justice Department as an assistant U.S. attorney from 1989 to 2017. In a recent op-ed published in the Washington Post, Yates condemned Jeff Sessions’ hardline approach against drug offenses. Yates was also part of a task force comprised of former lawmakers, federal prosecutors and reform advocates issued a series of recommendations including a waiver system which would allow states to set their own marijuana policies without federal interference.
Tom Perez. Tom Perez is the chair of the Democratic Party. Tom Perez’s position on cannabis policy isn’t quite clear, as he’s remained largely silent on the issue. He made a joke about Donald Trump smoking hemp but other than that has not talked much about marijuana.
Secretary of DHHS
Michelle Lujan. Michelle Lujan is the governor of New Mexico. In that role, she has expressed support for marijuana legalization. Gov. Lujan sees marijuana as a “economic development driver” with the following statement on her website:
Legalization would generate an estimated 11,000 new jobs in agriculture, manufacturing, regulation and retail, where sales would reach $620 million by the fifth year, according to an independent analyst. A mature medical/adult-use cannabis industry would generate some $100 million in annual revenue for state and local governments.
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Vivek Murthphy. Former U.S. Surgeon General Vivek Murthy is another contender for top spot at DHHS. Murtphy expressed optimism about the medical benefits of marijuana use in a television interview. Speaking on CBS This Morning, Murthy said there is some promising research about medical uses of marijuana. “We have some preliminary data showing that for certain medical conditions and symptoms, that marijuana can be helpful,” Murthy told CBS. “I think that we have to use that data to drive policymaking.”
Bottomline. It’s possible that marijuana reform could come in another form. For example, Congress could pass legislation that Biden could then sign into law. Biden could also adopt a policy, similar to the Cole Memo from the Obama years, that would provide the marijuana industry with guidance on federal prosecutorial discretion. However, given that Biden’s cabinet picks have the ability to deschedule or reschedule marijuana, we will be watching his cabinet appointments carefully.
Daniel Shortt is a corporate and regulatory attorney based in Seattle, Washington who works extensively with entrepreneurs in the cannabis industry. You can contact Daniel Shortt at [email protected] or (206) 430-1336.