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Biden Administration Can Legalize Marijuana Without Waiting For Lawmakers, Congressional Researchers Say

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President Joe Biden can grant mass amnesty to people who have violated federal marijuana laws, congressional researchers said in a new report, adding that his administration can also move to federally legalize cannabis without waiting for lawmakers to act.

The new analysis published by the Congressional Research Service (CRS) on Tuesday examines the question: “Does the President Have the Power to Legalize Marijuana?” It’s an idea that’s been raised repeatedly in recent years, including after Sen. Bernie Sanders (I-VT) pledged to take executive action to end prohibition on day one in the White House during his 2020 presidential campaign.

While CRS found that the president cannot in fact deschedule cannabis unilaterally with an executive order, “he might order executive agencies to consider either altering the scheduling of marijuana or changing their enforcement approach.” That includes having federal officials start a process to completely remove cannabis from the Controlled Substances Act (CSA) without requiring any additional action from Congress.

Further, the president could also use his pardon powers to either individually, or on a mass scale, grant clemency to people facing charges over federal marijuana offenses, CRS concluded. That blanket amnesty could apply even to people who have committed, but have not yet been charged with, a federal cannabis crime.

The new analysis from Congress’s research arm is welcome news for advocates who’ve been pushing Biden to exercise executive authority to provide relief to people who’ve been criminalized over cannabis, as he previously pledged during the presidential campaign.

“This new report affirms what advocates have long called for when it comes to taking decisive, consequential actions to end the senseless and cruel policy of marijuana criminalization,” NORML Political Director Justin Strekal told Marijuana Moment. “Should the Biden administration wish to be in line with the political, economic and moral realities surrounding cannabis policy, it should take action with haste.”

When it comes to federal legalization, “either Congress or the executive branch has the authority to reschedule or deschedule marijuana under the CSA,” the CRS report says. However, while it is not in dispute that Congress has that ability, and the administration can take action to reclassify cannabis out of Schedule I to a different category, some analysts have questioned whether the executive branch can completely deschedule the drug under current statutes.

The attorney general can initiate a process to push for the rescheduling of marijuana under the CSA by requesting a scientific review directly to U.S. Department of Health and Human Services (HHS). Under HHS, the Food and Drug Administration (FDA) would then assess the scientific, medical and public health implications before submitting that review to the Justice Department.

The HHS secretary or an outside party could also file a rescheduling petition, which would then be reviewed by the attorney general, who has usually delegated that responsibility to the Drug Enforcement Administration (DEA).

Executive authority on full descheduling is another matter, however. Attorney General Merrick Garland recently received a request from Sens. Elizabeth Warren (D-MA) and Cory Booker (D-NJ) to initiate a descheduling process, but a close reading of the relevant law raises questions about whether he can actually accomplish that legally.

Federal law says that if international treaties to which the U.S. is a party require control of any given substance, the attorney general “shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to” the separate HHS review.

Federal agencies like DEA have in the past referenced international treaty obligations as a reason they’re unable to domestically end marijuana criminalization.

It’s also the case, however, that the country has previously flouted such international consensus in other contexts such as military engagement. But as far as what the U.S.’s own federal statute allows, one interpretation would suggest the attorney general could be limited to moving marijuana to the lowest enforcement category under the CSA and could not fully deschedule it on his own.

The CRS report does not specifically weigh in on the international treaty complications and related federal laws implicated by them. The author directed Marijuana Moment to a prior CRS report on broader international implications of drug scheduling that doesn’t appear to directly address the part of U.S. code that some analysts say could prevent executive descheduling.

Beyond the question about broader administration powers, Biden himself as the president is not able to unilaterally deschedule marijuana, CRS said. While some like Sanders have suggested that it’s something the president could do through an executive order, legal experts say that it’s not so simple.

“The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area (federal controlled substances law is an exercise of Congress’s power to regulate interstate commerce),” the report states. “Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.”

However, while the president is limited in what he can do about existing federal laws, the report notes that “he has substantial control over how the law is enforced.”

“For instance, the Constitution grants the President the power ‘to grant Reprieves and Pardons for Offences against the United States.’ That clemency power extends to all federal offenses, ‘except in Cases of Impeachment,'” the report says. “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.”

As congressional lawmakers push to enact comprehensive legalization legislation, that’s an alternative approach that advocates want Biden to pursue in the meantime.

A group of more than 150 celebrities, athletes, politicians, law enforcement professionals and academics signed a letter that was delivered to Biden in September, urging him to issue a “full, complete and unconditional pardon” to all people with non-violent federal marijuana convictions.

That letter came just as the administration started encouraging about 1,000 people who were temporarily placed on home confinement for federal drug offenses to fill out clemency application forms.

Early in his administration, Biden received a letter from 37 members of Congress that called on him to use executive authority to mass pardon all people with non-violent federal marijuana convictions.

The ask for this unique form of presidential clemency is modeled on actions taken by Presidents Gerald Ford and Jimmy Carter in the 1970s to categorically forgive Americans who avoided the draft for the Vietnam War.

CRS said in the new report that it “appears that the President could provide clemency for some or all past federal marijuana-related offenses without making any changes to the CSA. However, such an exercise of the clemency power might not address all possible collateral legal consequences of marijuana-related activities, because some of those consequences do not depend on a person being charged with or convicted of a CSA violation.”

“Clemency also would not prevent prosecution of future offenses if the same President or a future administration ended the policy of amnesty,” the report says. “Furthermore, the presidential clemency power extends only to federal offenses; it does not affect offenses under state law.”

Another option at Biden’s disposal would be to “direct the Department of Justice (DOJ) to exercise its discretion not to prosecute some or all marijuana-related offenses.”

“Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed,'” CRS said. “DOJ is primarily responsible for prosecuting criminal violations of the CSA and possesses significant prosecutorial discretion in doing so.”

It did exercise that discretion under the Obama administration by issuing guidance to federal prosecutors that laid out federal enforcement priorities for marijuana-related offenses. That guidance was rescinded under the Trump administration’s first attorney general, Jeff Sessions, however.

The CRS report also provides analysis on the broader powers that Congress has when it comes to controlled substances.

“If Congress wishes to remove or scale back federal legal restrictions on marijuana beyond what the executive branch chooses to pursue, it has significant authority to do so,” it said. “While the CSA does not grant the President the power to change the status of a controlled substance or the punishments for controlled substance offenses, Congress unquestionably holds the power to amend the CSA to reschedule or deschedule a controlled substance or change applicable penalties.”

In both the House and Senate, there are efforts underway to use those powers to end marijuana prohibition.

A key House committee in September voted in favor of a bill to federally legalize cannabis, and Senate leadership is separately working on marijuana reform legislation.

CRS also said that “while Congress cannot directly change state laws, it may be able to override state laws via preemption or enact measures designed to encourage the states to change their own laws.”

Montana Marijuana Regulators Push Strict Ban On Industry Workers With Any Kind Of Criminal Convictions

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Credit Unions Urge Congress To Pass Marijuana Banking Reform Through Defense Bill

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Major associations representing U.S. credit unions are calling on Congress to pass marijuana banking reform through must-pass defense legislation.

It’s the latest in a series of requests from lawmakers, stakeholders and advocates to advance legislation to protect financial institutions that work with state-legal cannabis businesses from being penalized by federal regulators.

Specifically, they want to see the Senate follow the House’s lead in attaching language from the Secure and Fair Enforcement (SAFE) Banking Act to the National Defense Authorization Act (NDAA).

“We take no position on legalizing or decriminalizing medicinal or recreational cannabis at either the state or federal level,” the associations said in a letter to key committee leadership. “However, credit unions operating in states where it is legal have members and member businesses involved in the cannabis market who need access to traditional depository and lending services, the absence of which creates a significant public safety issue.”

The Credit Union National Association, Defense Credit Union Council and National Association of Federally-Insured Credit Unions signed the letter, which also touches on non-cannabis issues.

The groups, which wrote that they “strongly support” attaching SAFE Banking to NDAA, also stressed that “financial institutions that choose not to bank the cannabis industry still risk unknowingly serving those businesses in states where cannabis is legal.”

“Indirect connections are often difficult to identify and avoid because like any other industry, those offering cannabis-related services work with vendors and suppliers,” the letter continues. “Under the existing status quo, a credit union that does business with any one of these indirectly affiliated entities could unknowingly risk violating federal law.”

“Inclusion of the SAFE Banking Act puts in place necessary protections to bring revenue from state-sanctioned cannabis businesses into the financial services mainstream and, as a result, keeping communities safe,” it concludes.

While the Senate has yet to independently add the banking reform language to its version of NDAA, supporters want to see the provisions adopted by negotiators in conference for the final legislation sent to President Joe Biden’s desk.

Bipartisan members of the Senate Armed Services Committee recently sent their own letter urging leaders to include the SAFE Banking Act in the final NDAA. Shortly thereafter, U.S. senators representing Colorado made the same request in a separate letter.

The SAFE Banking Act has been approved in some form in the House five times now, but it’s so far languished in the Senate. Stakeholders have held out hope that the chamber would advance the legislation with a Democratic majority, but some key players like Senate Majority Leader Chuck Schumer (D-NY) have insisted on passing comprehensive legalization—like a reform bill he’s finalizing—first.

That said, Schumer has signaled that he’s open to enacting banking reform through NDAA if it contained social equity provisions.

Earlier this month, a bipartisan coalition of two dozen governors implored congressional leaders to finally enact marijuana banking reform through the large-scale defense legislation.

A group of small marijuana business owners also recently made the case that the incremental banking policy change could actually help support social equity efforts.

Rodney Hood, a board member of the National Credit Union Administration, wrote in a Marijuana Moment op-ed last month that legalization is an inevitability—and it makes the most sense for government agencies to get ahead of the policy change to resolve banking complications now.

Meanwhile, an official with the Internal Revenue Service said last month that the agency would like to “get paid,” and it’d help if the marijuana industry had access to banks like companies in other legal markets so they could more easily comply with tax laws.

Federal data shows that many financial institutions remain hesitant to take on cannabis companies as clients, however, which is likely due to the fact that the plant is a strictly controlled substance under federal law.

Read the letter from the credit union associations on marijuana banking below: 

Click to access 110421_ndaa_joint-trade.pdf

 

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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Marijuana Had ‘Unprecedented’ Success In State Legislatures In 2021, NORML Report Shows

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Lawmakers across the U.S. proved again in 2021 that marijuana reform will continue to advance on the state level despite the recalcitrance of Congress to end federal prohibition.

As more eyes turn to 2022 legislative sessions, a report from NORML that was released on Monday details advocates’ progress on the cannabis front this year in more than 25 states, where over 50 pieces of marijuana reform legislation were enacted.

Most notably, legislatures and governors in five states enacted recreational legalization—a notable trend given that the reform has historically been decided by voters as ballot initiatives. But 2021 has also seen more modest policy changes related to medical cannabis, decriminalization and social equity.

“State lawmakers took unprecedented steps this year to repeal marijuana prohibition laws and to provide relief to those millions of Americans who have suffered as a result of them,” NORML Deputy Director Paul Armentano said in a press release.

Of course, one of the primary objectives of reform advocates is to comprehensively end prohibition. To that end, the legislatures of Connecticut, New Jersey, New Mexico, New York and Virginia each legalized marijuana for adult use this year. (New Jersey’s action came months after voters approved a referendum on the issue during last November’s election.)

In Rhode Island, the Senate approved a marijuana legalization bill in June. While legislative leaders discussed holding a special session to send a final measure to the governor’s desk, it now appears more likely that the issue will be taken up again in 2022.

North Dakota’s House also passed a recreational legalization bill, but it was later rejected in the Senate.

Louisiana lawmakers, meanwhile, passed legislation this year that decriminalizes possession of up to 14 grams of cannabis.

With respect to expungements for prior marijuana convictions, reform measures meant to help provide people with relief were approved in Colorado, Delaware, New Mexico and Virginia, NORML reported.

As an example, the governor of Colorado signed a bill in May to double the marijuana possession limit for adults in the state—and he also directed state law enforcement to identify people with prior convictions for the new limit who he may be able to pardon.

Separately, Alabama’s governor signed legislation that same month to legalize medical cannabis in the state.


Marijuana Moment is already tracking more than 1,200 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

At least 15 states took steps to expand existing medical marijuana programs. They range from California, where hospitals will now be required to permit medical cannabis use by certain patients, to Texas, where patients can now qualify for low-THC marijuana products if they suffer from post-traumatic stress disorder or cancer.

As state markets have continued to evolve, some lawmakers have turned their attention to enhancing social equity in the industry. And to that end, five state legislatures advanced reform this year.

For example, Illinois passed a bill to create additional marijuana licensing lotteries to expand business opportunities. And in Michigan, the governor signed a bill this month that makes it so people with cannabis-related felony or misdemeanor convictions on their record are no longer disqualified from obtaining a medical cannabis business license.

NORML also documented other reform bills related to the business industry, driving/DUI policies, juvenile justice and more. One miscellaneous measure that was enacted in California, for example, makes it so non-intoxicating cannabinoids, including CBD, can be sold as dietary supplements and as ingredients in food and beverages.

“As we approach the 2022 legislative session and the elections next November, it is important for lawmakers of all political persuasions to recognize that advocating for marijuana policy reforms is a political opportunity, not a political liability,” NORML’s Armentano said. “These policies are popular among voters, regardless of political party.”

Activists and lawmakers have made clear that the cannabis reform momentum will continue through the new year.

On Monday, for instance, a Kentucky lawmaker announced that she is pre-filing bills to legalize possession, limited sales and home cultivation of marijuana in the state for the 2022 session.

In the South Dakota legislature, a cannabis reform bill has been formally recommended by a leadership panel for the upcoming session. And activists will also continue collecting signatures for a 2022 ballot initiative—though they hope to work with lawmakers to advance reform legislatively ahead of next year’s election.

The Indiana Democratic party is mounting a push for marijuana legalization and calling on state lawmakers to enact the reform in 2022.

Arkansas activists are also hoping to place marijuana legalization on the state’s 2022 ballot.

Last month, Oklahoma activists filed a pair of 2022 ballot initiatives to legalize adult-use marijuana and remodel the state’s existing medical cannabis program.

In Nebraska, advocates unveiled the language of a pair of initiatives to legalize medical marijuana in the state last month.

This summer, New Hampshire lawmakers discussed a new strategy to legalize marijuana in the state that involves putting a proposed constitutional amendment on the ballot for voters to decide on in 2022.

Wyoming activists, meanwhile, are working to collect signatures for 2022 ballot initiatives to legalize medical marijuana and decriminalize cannabis possession.

A Maryland House working group has been tasked with studying marijuana and preparing a legalization referendum that the speaker wants to put on next year’s ballot.

Just months ago, Ohio activists were cleared to begin collecting signatures for a 2022 ballot initiative to legalize marijuana in the state. And the campaign says it expects to have enough valid signatures by the end of this month.

Idaho advocates are also pursuing a 2022 cannabis legalization ballot initiative as well as a separate proposal focused on medical marijuana.

Kentucky Lawmaker Pre-Files Marijuana Legalization Bills For 2022 Session

Photo courtesy of Mike Latimer.

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Kentucky Lawmaker Pre-Files Marijuana Legalization Bills For 2022 Session

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A Kentucky lawmaker announced on Monday that she is pre-filing bills to legalize possession, limited sales and home cultivation of marijuana in the state for the 2022 session, with endorsements from several leading advocacy groups.

Rep. Nima Kulkarni (D) is taking a dual-track approach to the reform, with one bill to have the legislature adopt the policy as a statutory measure and another to enact legalization through a constitutional amendment that would go before voters.

Generally speaking, the measures would accomplish the same central objective of ending prohibition, but Kulkarni said they’re meant to complement each other by giving lawmakers an opportunity to pass legalization in the short-term while allowing voters to constitutionally enact the reform as a “more permanent fix that gives cannabis use the constitutional protection it deserves.”

“I am sponsoring these bills for several reasons, any one of which should be enough for them to become law,” the sponsor said in a press release.

“First, current cannabis statutes have needlessly and tragically ruined many lives, especially people of color who have suffered because of unequal enforcement,” she said. “Second, thousands of citizens, from cancer patients to veterans suffering from PTSD, should have the right to use something that gives them the mental and physical relief they deserve without relying on stronger, potentially addictive medicine. Third, cannabis decriminalization would give the state a much-needed source of reliable revenue without raising current taxes a single cent.”

Kulkarni further noted that polls “have repeatedly shown a majority of Kentuckians backs decriminalization and allowing cannabis to be used responsibly by adults.”

Under one of the lawmaker’s pre-filed bills, a constitutional amendment would be placed on the ballot if three-fifths of the House and Senate approve it during next year’s legislative session. If passed by voters, adults 21 and older would be able to possess, purchase and sell up to one ounce of cannabis. They could also grow up to five plants for personal use.

The measure would task the General Assembly with coming up with regulations on matters such as licensing and taxes.

The separate statutory proposal would similarly remove criminal penalties for low-level possession, cultivation and sale of cannabis. It would also amend state statute so that marijuana paraphernalia would no longer be criminalized and create a pathway for people to have their cannabis convictions expunged.

Neither measure creates a regulatory structure for commercial marijuana sales, something that would be subject to separate legislation.


Marijuana Moment is already tracking more than 1,200 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

“Because of outdated and ill-enforced laws, thousands of Kentuckians have lost time and opportunities due to criminal convictions, and thousands more have suffered needlessly because Kentucky blocks cannabis’ medicinal use,” ACLU of Kentucky said. “It is past time for the commonwealth to join the 36 other states that have removed most if not all of these barriers, which is why we are proud to add our name to those supporting Rep. Nima Kulkarni’s legislation.”

While Kentucky is well-known for its hemp industry, broader reform has consistently stalled.

The Republican sponsor of a bill to legalize medical marijuana in Kentucky said last month that he made multiple revisions to the legislation to scale it back and add restrictions to garner more support from colleagues—and he said he’s confident it would pass if legislative leaders had the “courage” to simply allow a vote on it.

Rep. Jason Nemes (R) filed a medical legalization bill that soundly passed the House last year but later died in the Senate without a vote amid the early part of the coronavirus pandemic. He reintroduced the legislation in January for the 2021 session but it did not advance this year. Now he’s working to build support for a new version for 2022.

Gov. Andy Beshear (D) is in favor of medical marijuana legalization and called on lawmakers to pass the reform during a State of the Commonwealth address in January.

Passing an adult-use marijuana legalization bill would presumably be a much larger challenge in the conservative legislature, but the proposal has the backing of several prominent groups.

Mike Conway, state director for Americans for Prosperity-Kentucky, said the pre-filed bills “would move Kentucky away from the harmful policies that have criminalized the use and possession of marijuana.”

“Criminal enforcement of marijuana possession has unnecessarily brought thousands of Kentuckians into the criminal justice system while diverting law enforcement resources away from public safety priorities such as violent crime reduction,” he said.

Matthew Bratcher, executive director for Kentucky NORML, said the group “commends Representative Kulkarni in her efforts to reform the cannabis possession laws in our commonwealth, and we encourage other legislators from both sides of the aisle to join her in making a difference in the lives of many of Kentuckians.”

“We’re at the precipice of the opening of the cannabis industry here in Kentucky,” C.J. Carter, Kentucky state director for Minorities for Medical Marijuana, said. “This is indeed a dangerous moment in time for Black and Brown people. There’s a new multi-billion dollar industry that will soon open on both the Federal and State level while simultaneously, people who look like me remain criminalized behind bars and are once again being left out of the conversation.”

“We now have the opportunity to write a different narrative in Kentucky that would benefit us first and foremost,” he said. “The State of Kentucky and its history as it relates to cannabis owes a tremendous debt to the Black Community and that starts with this legislation that is being introduced by Rep. Kulkarni.”

Read the text of the pre-filed Kentucky marijuana legalization bills below: 

Click to access kentucky-cannabis-bills.pdf

Florida Lawmaker Files Bill To Decriminalize All Currently Illicit Drugs

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