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Biden’s Health Secretary Pick Could Help Reclassify Marijuana

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President-elect Joe Biden has picked the current attorney general of California to lead serve as the next federal secretary of health and human services, a position that could play a central role in loosening laws prohibiting marijuana.

That seems to be good news for legalization advocates, as Attorney General Xavier Becerra (D) has a considerable record supporting cannabis reform and working to protect California’s legal program from federal interference.

What’s yet to be seen is who President-elect Biden will nominate as U.S. attorney general—a position that’s also significantly consequential when it comes to marijuana’s classification and enforcement of drug laws.

Before getting into the details of Becerra’s record, here’s why the U.S. Department of Health and Human Services (HHS) is important to enacting a cannabis policy change at the federal level: 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.

In other words, HHS is a key player in enacting reform through the available executive process. And Becerra has made clear that he feels federal marijuana policy needs to change, even if he hasn’t weighed in specifically on scheduling.

As far as Biden in concerned, he feels marijuana should be placed in Schedule II, the second most restrictive category under the Controlled Substances Act. But advocates argue that does not go far enough and could have an inadvertent, adverse impact on state-legal markets. They’re pushing him to adopt a policy of complete descheduling, which would be accomplished if a bill approved by the House last week makes it through the Senate and onto the president’s desk.

But even if Congress doesn’t advance cannabis legalization though the whole legislative process, the next administration can enact some amount of reform on its own, administratively—and that’s where Becerra would come in if confirmed by the Senate to join Biden’s cabinet.

Here’s where would-be HHS secretary Becerra stands on cannabis:

On states’ rights

Last year, Becerra was one of 21 state attorneys general who sent a letter to congressional leaders expressing support for a bipartisan bill to protect state-legal cannabis programs against federal intervention.

“Just as we allow alcohol to be sold, we’ve come into the 21st century and announced that it’s better to regulate marijuana than criminalize it,” he told The Los Angeles Times in 2017. “The federal government has to catch up and get into the 21st century, first. Secondly, we have to make sure the federal government is helping us, not hindering us, when it comes to coming up with a good way to regulate it.”

“So it behooves the federal government to pull its head from underneath the sand and start to figure out how to do this the right way,” he said. “There are far more important things to worry about than whether someone’s smoking marijuana for medicinal purposes or not.”

In July, the state’s top prosecutor asked a federal court to reject a Justice Department lawsuit that sought to force regulators to hand over documents about several licensed marijuana businesses.

“I think at this stage what we’re finding is that, with more than half the states in the country having some form of legalized marijuana, that we’re moving forward,” Becerra said in 2018, responding to a question about then-Attorney General Jeff Sessions signaling that a federal crackdown could come. “This is a 21st century, not the 20th century.”

“We can’t stop the federal government from doing what the federal government is allowed to do under the Constitution, but the federal government is not absolute in its power,” he said. “The Constitution restricts the federal government’s ability to intervene in state affairs and so, to the degree that we have rights under the U.S. Constitution to move forward with the public safety and the general welfare of our 40 million residents, we will. And if the federal government tries to interfere, we’ll challenge them wherever we need to.”

“In California, we decided it was best to regulate, not criminalize, cannabis. Unlike others, we embrace, not fear, change. After all, this is 2018 not the 20th century,” he said in 2018. “At the California Department of Justice we intend to vigorously enforce our state’s laws and protect our state’s interests.”

In 2019, Becerra’s office released guidelines for continuing to implement the state’s medical cannabis program.

“In light of California’s legalization of recreational adult-use cannabis, as well as its decision to remove the use and cultivation of physician-recommended medicinal cannabis from the scope of the state’s drug laws,” the document says, “it is recommended that state and local law enforcement officers not arrest individuals or seize cannabis under federal law when the officer determines, from the facts available, that the cultivation, transportation, delivery, and/or possession, is permitted under California’s medicinal or adult use cannabis laws.”

On marijuana banking

On several occasions, Becerra has teamed up with other state attorneys general from across the country in calling on Congress to pass legislation to expand cannabis businesses’ access to banking services.

One such letter from last year was signed Becerra and 37 other state attorneys general who pressed federal lawmakers to allow legal marijuana businesses to access the banking system.

“Regardless of how individual policymakers feel about states permitting the use of medical or recreational marijuana, the reality of the situation requires federal rules that permit a sensible banking regime for legal businesses,” they wrote.

In a 2018 letter to lawmakers, the attorney general and 16 of his counterparts wrote that “we are requesting legislation that would provide a safe harbor for depository institutions that provide a financial product or service to a covered business in a state that has implemented laws and regulations that ensure accountability in the marijuana industry such as” the Secure and Fair Enforcement (SAFE) Banking Act.

Earlier this year, Becerra joined 33 other state attorneys general in signing a letter to House and Senate leadership that called on Congress to pass a coronavirus relief bill that included SAFE Banking Act language.

“The continued exclusion of the licensed cannabis industry from the federal banking system is untenable—and unwise,” he said in a press release. “The coronavirus crisis has only exacerbated the economic and investigatory challenges that arise from keeping a $15 billion industry in the shadows. Congress should move swiftly to pass this commonsense legislation and provide relief to the many local cannabis businesses that are playing by the rules.”

The attorney general’s office also announced in 2018 that it would be conducting a study into the possibility of setting up a state-run publicly owned bank to service the marijuana industry.

On California cannabis eradication and regulations

While pushing for federal reforms to marijuana policies and defending his state’s program from interference, Becerra has also led efforts to crack down on cannabis operations in California that do not comply with local law.

The attorney general said in 2019 that illegal cultivation and marijuana sales represent some of the most challenging regulatory enforcement problems and that these illicit activities harm “the ability for the industry to be a legitimate one.” However, he said, “I do agree with the initiative and the votes of the people in California to move from criminalizing to regulating cannabis.”

He and other California officials held a press conference in partnership with the Justice Department in 2018 to highlight the consequences of illicit marijuana cultivation on public lands, focusing in particular on the dangers associated with pesticides.

In October of this year, Becerra touted that more than 1.1 million marijuana plants at 455 illegal grow sites were eradicated as part of the state’s annual Campaign Against Marijuana Planting (CAMP) Program. Also, 140 people were arrested.

“Illegal marijuana planting risks public safety, endangers public health, and devastates critical habitats and wildlife,” he said. “Every year, the California Department of Justice works with federal, state, and local partners to hold illegal growers accountable and reclaim our public lands.

The prior year, his office announced that 148 people had been arrested and 953,459 marijuana plants were destroyed at 345 illegal grow sites.

“Illegal cannabis grows are devastating our communities,” Becerra said. “Criminals who disregard life, poison our waters, damage our public lands, and weaponize the illegal cannabis black market will be brought to justice.”

Congressional record

Becerra, who served in the U.S. House from 1993-2017, didn’t proactively cosponsor any marijuana reform bills. However, he did vote in favor of numerous cannabis-related spending bill amendments on the floor, including one in 2015 to prevent the Justice Department from using its funds to intervene in any state-legal marijuana programs.

He voted for a more limited rider to protect state medical cannabis programs all eight times that it came up for a vote while he was in office, starting in 2003. The then-congressman also approved amendments to let the U.S. Department of Veterans Affairs recommend medical marijuana to veterans, protect state industrial hemp and CBD programs, give cannabis businesses access to the banking system and promote hemp research.

On broader drug policy

In July, Becerra and a coalition of other state attorneys general filed an amicus brief in a federal court defending the right of a safe injection facility for currently illicit drugs to open in Philadelphia, Pennsylvania.

“The opioid epidemic has devastated communities throughout our nation. Safe injection sites aim to increase public health and safety by providing comprehensive services to victims of the opioid epidemic, while reducing the public nuisance of drug use in public spaces,” he said. “Safe injection sites like Safehouse are an innovative tool to combat the opioid epidemic and drug dependency while reducing overdose death and transmission of diseases. California has always been a trailblazer, and we’re committed to doing what it takes to keep our communities healthy and safe.”

What to expect if Becerra leads HHS

As HHS secretary, Becerra seems likely to support any Biden administration marijuana rescheduling effort and to push for broader drug policy reforms as well.

And while the president-elect remains opposed to federally descheduling cannabis for now, he’s pledged to reschedule the plant, which he could leave up to HHS and the Justice Department to facilitate the specifics of. The attorney general nominee is yet to be named, but in HHS, it stands to reason that Becerra would happily go along with a reclassification, if not advocate for further changes.

Process-wise, the secretary of HHS is able to unilaterally submit a petition for rescheduling to the attorney general. After the Justice Department reviews a request, the Food and Drug Administration (under HHS) conducts its own analysis and the HHS secretary sends its findings and recommendations back to the attorney general. The health agency’s medical and scientific findings are then binding on the Justice Department’s scheduling decision.

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