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Biden AG Pick Merrick Garland Wants To Defer To DEA On Marijuana Science And Classification

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President-elect Joe Biden is reportedly set to nominate Judge Merrick Garland—who seems to feel that the Drug Enforcement Administration (DEA) should be deferred to when it comes to the science and classification of marijuana—to serve as the next U.S. attorney general.

But according to press reports, he’s also selecting two civil rights activists who embrace cannabis legalization to serve in other top posts at the Justice Department. Together, the picks could have far-reaching implications for marijuana policy.

Garland, who was previously nominated by President Obama to serve on the Supreme Court only to have his nomination blocked by Senate Republicans, hasn’t made his views on cannabis issues especially clear. But his judicial record indicates that he believes in deference to DEA when it comes to drug scheduling. And that could be a problem for efforts to reclassify cannabis given the agency’s strong opposition to such a move for decades.

The principal concern for reform advocates when it comes to Garland’s in a 2012 federal lawsuit case over DEA’s denial of a marijuana rescheduling petition. He was one of three judges on a U.S. Court of Appeals for the District of Columbia Circuit panel that upheld the denial, and his commentary during the oral arguments suggests he feels DEA is the appropriate agency to weigh cannabis science and set scheduling policy.

In the case, the court was responsible for examining whether DEA had meaningfully considered the therapeutic potential of cannabis before deciding it should remain in its restrictive category. The agency has repeatedly maintained that marijuana should be kept as a Schedule I drug because, it claims, the plant has no proven medical value and a high risk potential.

“Don’t we have to defer to the agency” when it comes to evaluations of research into marijuana’s therapeutic value? Garland asked the attorney representing reform group Americans for Safe Access. “Defer doesn’t mean they win, but defer in the sense of we’re not scientists—they are—to the definition of what is an adequate and well-controlled study.”

Listen to Garland discuss the marijuana case below: 

Now, that’s not necessarily judgement on whether cannabis has medical value or the appropriateness of its legal classification under federal law. But it does offer a window into Garland’s perspective on deference to DEA at a time when its decision-making on cannabis is again being challenged in court.

In the majority opinion joined by Garland, the court said that “because the agency’s factual findings in this case are supported by substantial evidence and because those factual findings reasonably support the agency’s final decision not to reschedule marijuana, we must uphold the agency action.”

As attorney general, Garland would be in a position to unilaterally initiate a petition to reschedule cannabis. As head of the Justice Department, under which DEA is organized, he would also have considerable influence of the agency’s scheduling and enforcement policies when it comes to marijuana.

Advocates were hopeful that Biden would pick someone who might proactively push for the policy change—such as former Sen. Doug Jones (D-AL), who is on record as saying cannabis should be completely descheduled—but that appears to not have been the case.

It’s still possible that Biden—who himself supports modestly reclassifying marijuana to Schedule II—could be urged to have his administration push for broader reform by some other new administrative picks who are in favor of legalization however.

Former prosecutor and civil rights activist Vanita Gupta, meanwhile, is expected to be chosen to serve as associate attorney general. She favors cannabis legalization and has strongly condemned harsh criminalization policies for non-violent drug offenses.

Gupta currently serves as president of the Leadership Conference on Civil and Human Rights (LCCHR), a position in which  she has voiced support for a House-passed bill to federally legalize marijuana and has railed against the injustices of the drug war. Gupta was part of a criminal justice task force organized by Biden and Sen. Bernie Sanders (I-VT) prior to the Democratic presidential nomination.

In March 2018, Gupta said that the Trump administration is “seeking a decidedly punitive approach to America’s drug problem—one that seeks to increase already disproportionate sentences for drug offenses & employ the death penalty.”

“We tried the punitive and overly simplistic approach of the War on Drugs approach 30 years ago, and it failed. That’s why we’re seeing, in states around the country, a bipartisan push to recognize that substance use requires a public health approach,” she said. “We must reject efforts to further politicize this crisis. We cannot just do what feels good, or sounds good. We must take an evidenced-based approach to ending the opioid crisis.”

More recently, Gupta has highlighted the dangers of excessive sentences doled out for crack-related offenses and said while Congress took steps to repair those harms, there are still people stuck in prison—and that’s especially concerning during the coronavirus pandemic.

Her organization has supported that bill and numerous other drug policy reform initiatives, including as part of a collective effort called the Marijuana Justice Coalition. LCCHR was one of more than 100 groups that released a criminal justice plan for the 2020 election calling for the legalization of marijuana and supporting the “dismantling” of the criminalization of other drugs. The group also called for a delay of a House vote on cannabis banking legislation because it said comprehensive reform with a social equity focus should be prioritized.

In April, LCCHR was one of several organizations urging Congress to extend access to federal coronavirus relief to the marijuana industry.

Another positive signal for advocates is Biden’s selection of Kristen Clarke, who is president of the Lawyers Committee for Civil Rights Under Law, to lead the Justice Department’s Civil Rights Division, a role in which Gupta served during the Obama administation.

Clarke also backs cannabis legalization.

Separately, Biden recently selected a nominee for secretary of health and human services (HHS)—California Attorney General Xavier Becerra (D)—who is amenable to reform. And in his role, he could help facilitate rescheduling. While the Justice Department plays a key role in marijuana’s federal scheduling, a medical and scientific review by HHS is binding on the attorney general’s subsequent classification decision.

Taken altogether, the Justice Department picks can be viewed as encouraging from an advocacy standpoint. Garland might not be a champion of reform, but he hasn’t taken a stance against legalization and has only defended statutory policies on scheduling.

He certainly can’t be compared to President Trump’s first attorney general, Jeff Sessions, who is firmly opposed to cannabis policy changes and rescinded Obama-era guidance that gave federal prosecutors priorities when it comes to marijuana enforcement.

And of course, regardless of the Justice Department’s position and actions, advocates are more closely following Congress and the executive branch going into 2021. A bill to federally legalize marijuana passed the House last month, and it’s expected to be taken up again in the new session.

The chances of that legislation—and other more modest cannabis reform bills—reaching Biden’s desk this year are significantly higher now that Democrats have reclaimed control of the Senate and maintain power in the House.

What The New Democratic-Controlled Senate Means For Federal Marijuana Legalization In 2021

Photo courtesy of Philip Steffan.

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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Texas Lawmakers Approve Marijuana Decriminalization Bill In Committee

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A bill to decriminalize marijuana possession in Texas—as well as a separate proposal to reduce penalties for possessing cannabis concentrates—advanced out of a key House committee on Friday.

These are the latest developments that have come after a week where Texas lawmakers have considered a medley of marijuana reform measures. But arguably the most significant piece of cannabis legislation to move out of committee would make possession of up to an ounce of marijuana a class C misdemeanor that carries a fine but no threat of jail time.

The full House of Representatives approved a cannabis decriminalization bill in 2019, but it did not advance in the Senate that session.

This time around, the House Criminal Jurisprudence Committee approved the decriminalization bill, which would also prevent law enforcement from making arrests over low-level possession. Other decriminalization proposals that were under consideration by the panel this week would not prohibit that enforcement action, which is key because police are currently able to incarcerate people who are arrested for class C misdemeanors even though the charge itself does not carry the risk of jail time in sentencing.

The advancing legislation, HB 441, sponsored by Rep. Erin Zwiener (D), would also prevent the loss of a driver’s license or the creation of a criminal record for possession of up to one ounce.

Separately, the committee advanced legislation to make possession of up to two ounces of cannabis concentrates a class B misdemeanor.

Both bills were among the subjects a lengthy hearing the panel held on Tuesday.

“Marijuana bills are moving through the committee process at record speed this session,” Heather Fazio, director of Texans for Responsible Marijuana Policy, told Marijuana Moment. “There’s good reason to be optimistic about the upcoming votes and the House and advocates will be doubling down their efforts to influence senators.”

This action comes one day after the House Public Health Committee unanimously approved a bill to significantly expand the state’s medical marijuana program.

Sponsored by Chairwoman Stephanie Klick (R), the bill would add cancer, chronic pain and post-traumatic stress disorder (for veterans only) as conditions that could qualify people for the state’s limited medical cannabis program.

It would further allow the Department of State Health Services to add more qualifying conditions via administrative rulemaking. And it would also raise the THC cap for medical marijuana products from 0.5 percent to five percent.


Marijuana Moment is already tracking more than 900 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.

On Thursday, the House Agriculture and Livestock Committee also discussed legislation that would make certain changes to the state’s hemp program, including imposing rules related to the transportation and testing of consumable hemp products.

While the Texas legislature has historically resisted most cannabis reforms, there are signs that this session may be different.

House Speaker Dade Phelan (R) said during a Texas Young Republicans event last month that while he wouldn’t be able to distinguish marijuana from oregano, he said, “I understand the issue.”

The speaker said that he voted for a limited medical cannabis legalization bill during his freshman year in the legislature, and his support for the reform is partly based on the fact that he has a “sister with severe epilepsy, and small amounts of CBD oil makes a big difference in people’s lives.”

Phelan also noted that he was a “joint author—no pun intended” of cannabis decriminalization legislation last session.

“I was able to go back home and explain it, and it wasn’t a big deal,” he said. “To me, it’s a reasonable criminal justice reform issue.”

Texans’ support for legalizing marijuana has grown significantly over the past decade, according to a poll released last month.

Sixty percent of state voters now back making cannabis legal “for any use,” the University of Texas and Texas Tribune survey found. That compares to just 42 percent who said the same back in 2010.

Leaders in both chambers of the legislature have recently indicated that they anticipate more modest proposals to be taken up and potentially approved this session, particularly as it concerns expanding the state’s limited medical cannabis program.

Phelan said he thinks “the House will look at” reform measures this year, including bills to legalize for adult use. He said the lawmakers will likely “review those again, and some will get traction, some will not.” However, the Senate remains an obstacle for comprehensive reform.

Legislators in the state prefiled more than a dozen pieces of cannabis legislation ahead of the new session. That includes bills that would legalize recreational marijuana, allow high-THC cannabis for medical use and decriminalize low-level possession of marijuana.

That said, Lt. Gov. Dan Patrick (R), who presides over the Senate, has killed prior efforts to enact reform in the state, raising questions about the prospects of far-reaching changes advancing in the chamber.

Nevada Lawmakers Approve Marijuana Bill To Allow On-Site Consumption Lounges

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Nevada Lawmakers Approve Marijuana Bill To Allow On-Site Consumption Lounges

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A bill to allow on-site marijuana consumption lounges advanced through a Nevada Assembly committee on Friday. The panel separately passed a measure making it so the concentration of THC in a person’s blood cannot be singularly used to determine impairment while driving.

The social use legislation, sponsored by Speaker Pro Tempore Steve Yeager (D), would create two new licensing categories for cannabis businesses in the state. One would be for “retail cannabis consumption lounges” and the other would be an “independent cannabis consumption lounge.”

Existing retailers could apply for the former license and sell products that could be consumed on-site by adults 21 and older. Independent lounges would not be permitted to sell cannabis on their own, but would need to have marijuana products delivered to consumers from another source.

That said, independent licensees could submit a request to regulators to sell cannabis that they produce or to enter into a contract with an adult-use retailer to sell their products.

The state’s Cannabis Compliance Board would also be responsible for creating regulations for on-site facilities and setting fees for license applicants. Businesses that qualify as social equity applicants would have a reduced fee.

Under the legislation, a person “who has been adversely affected by provisions of previous laws which criminalized activity relating to cannabis, including, without limitation, adverse effects on an owner, officer or board member of the applicant or on the geographic area in which the applicant will operate” is considered a social equity applicant.


Marijuana Moment is already tracking more than 900 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.

Yeager proposed a large-scale amendment to the proposal before it was approved by the Assembly Judiciary Committee. It builds on the definition and scoring system for social equity applicants, revises public safety requirements for lounges and ensures that products purchased at lounges cannot be removed from the facility, among other changes.

The Las Vegas City Council in 2019 approved an ordinance allowing for social consumption sites within city limits.

That year, Alaska became the first state to enact regulations that provide for the on-site use option at dispensaries. Colorado followed suit with legislation approved that legalized cannabis “tasting rooms” and “marijuana hospitality establishments” where adults could freely use cannabis. Social consumption sites are also provided for in New York’s recently enacted marijuana legalization law.

In Nevada, adding new license types and giving consumers this option—especially in the tourist-centric state—could further boost marijuana and other tax revenues. And Gov. Steve Sisolak (D) has had a particular interest in ensuring that those tax dollars support public education, which he talked about during a State of the State address in January.

Sisolak has also committed to promoting equity and justice in the state’s marijuana law. Last year, for example, he pardoned more than 15,000 people who were convicted for low-level cannabis possession.

That action was made possible under a resolution the governor introduced that was unanimously approved by the state’s Board of Pardons Commissioners.

Under the impaired driving bill that separately cleared the committee on Friday, the per se blood test for THC would no longer be used in determining impairment.

Advocates have argued that the limit is arbitrary and there’s a lack of scientific evidence demonstrating a link between the amount of THC metabolites present in the blood and active impairment.

New Mexico Governor Sends Marijuana Bill Sponsors A ‘Save The Date’ For Expected Legalization Bill Signing

Photo courtesy of Martin Alonso.

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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Biden Gets Yet Another Congressional Letter Blasting Marijuana-Related White House Firings

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President Joe Biden has received yet another letter from a lawmaker demanding answers about his administration’s practice of firing or otherwise punishing staffers for prior marijuana use.

Rep. Angie Craig (D-MN) noted the national push to end prohibition and how the White House’s actions reveal a troubling disconnect.

“Cannabis is legal for either medical or adult use in 36 states, with numerous states pursuing efforts to further legalize for adult use,” the congresswoman wrote. “In Minnesota, our state legislature is expected to vote on measures to legalize cannabis in the coming months following years of political and community organizing by activists throughout the state.”

“Minnesotans and the American people are demanding change to our harsh and unequally applied cannabis laws,” she wrote. “I look forward to seeing your Administration reverse course on this harmful and unnecessary hurdle to hiring diverse and talented public servants.”

Craig also mentioned efforts to legalize marijuana at the federal level and commented on Biden’s prior statements on more modest reforms.

“I stand ready to work with you as we revisit our country’s drug laws, including the descheduling of cannabis as a Class 1 drug at the federal level,” she said. “You have previously expressed your commitment to decriminalizing cannabis in acknowledgement that a cannabis conviction or even the stigma of cannabis use can ruin lives and prevent people from voting, gaining employment and contributing to society.”

This is the third letter from lawmakers that Biden has been sent regarding the federal marijuana employment controversy.

A coalition of 30 members of Congress sent a letter last month that sharply criticizes the administration for terminating or punishing multiple White House staffers who disclosed their prior cannabis use. They pointed out that Vice President Kamala Harris and at least one one other Cabinet member are on record about their own marijuana use experiences.

Prior to that, Rep. David Joyce (R-OH) sent a similar message to the president condemning news of the marijuana-related firings for people who were honest about their history with cannabis on a federal form that’s required as part of the background check process.

“Simply put, in a nation where the truth is considered malleable, we need to demonstrate to our young public servants that telling the truth is an honorable trait, not one to be punished,” the congressman wrote. “I respectfully request that your administration discontinue punishment of staff for being honest about their prior cannabis use and reinstate otherwise qualified individuals to their posts.”

White House Press Secretary Jen Psaki addressed the controversy last month, saying during a press briefing that while Biden could theoretically end the policy of firing staff over prior marijuana use himself, that’s not happening as long as cannabis is federally illegal.

She later said that the president’s stance on marijuana legalization “has not changed,” meaning he’s still opposed to the comprehensive reform.

Psaki has previously attempted to minimize the fallout over the cannabis firings, with not much success, and so her office released a statement last month stipulating that nobody was fired for “marijuana usage from years ago,” nor has anyone been terminated “due to casual or infrequent use during the prior 12 months.”

Read the new letter to Biden on White House marijuana employment policy below: 

Letter to Biden Regarding C… by Marijuana Moment

New Mexico Governor Sends Marijuana Bill Sponsors A ‘Save The Date’ For Expected Legalization Bill Signing

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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