Sen. Bernie Sanders (I-VT) is making a bold promise: if elected president, he will legalize marijuana in all 50 states on his first day in office.
“We will end the destructive war on drugs,” the 2020 Democratic candidate said at rally days before this week’s Iowa caucus. “On my first day in office through executive order we will legalize marijuana in every state in this country.”
But while the pledge has been largely welcomed by reform advocates and cannabis enthusiasts, some experts question whether such immediate, sweeping action is legally or practically achievable.
The use of executive orders at the start of a presidency isn’t unprecedented—President Obama signed one aimed at shutting down the controversial Guantanamo Bay prison the day after he assumed office and President Trump issued an order scaling back Obamacare, for example—but there are unique challenges associated with a presidential move to unilaterally remove cannabis from the Controlled Substances Act (CSA).
To effectively end marijuana prohibition through the executive branch, according to an analysis from the Brookings Institution’s John Hudak, the secretary of the Department of Health and Human Services (HHS) or an outside party would have to file a petition, which would then be reviewed by the attorney general, who has usually delegated that responsibility to the Drug Enforcement Administration (DEA). The attorney general can also initiate the process on their own, requesting a scientific review directly to 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 recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance,” the CSA states. “If the Attorney General determines that these facts and all other relevant data constitute substantial evidence of potential for abuse such as to warrant control or substantial evidence that the drug or other substance should be removed entirely from the schedules, he shall initiate proceedings for control or removal.”
Thus, changing marijuana’s classification under federal law without an act of Congress is far more complicated than a single stroke of a presidential pen. While Sanders could theoretically make supporting descheduling a condition of nominating candidates to be HHS secretary or attorney general, it’s virtually certain he would not have those officials installed on day one of his presidency.
The new day-one, executive action proposal is a far more ambitious plan than the one Sanders previously floated. Last year, the senator said he’d take a systematic approach to legalization that would involve naming cabinet members who will “work to aggressively end the drug war and legalize marijuana” within 100 days of his taking office.
But it appears the timetable has changed, with top aides reportedly including marijuana legalization in a list of possible executive orders—though Sanders has yet to formally sign off on them. Some experts are skeptical that this latest plan has legs, and some feel it reflects Sanders’s political desire to stand out as the most marijuana friendly candidate, rather than an earnest attempt to expedite the descheduling process.
Here are some of the issues they identified:
A President Can’t Change State Marijuana Laws
Federal descheduling wouldn’t directly repeal any state laws prohibiting marijuana, and so the prospect of swift legalization across 50 states is questionable.
“The question first is, would states be compelled to do this? That is, does the president have the power to do this? That’s the first step,” Hudak told Marijuana Moment. “The second step actually raises a more important question, and that is: can states continue to maintain a different schedule for a substance than a federal schedule? There’s plenty of evidence that a state could do that.”
While some state drug scheduling systems are tied to the federal system, it’s still the case that “the state has an opportunity to do something different, but it has to proactively do something different.”
“I think we typically don’t have situations in which the federal government is more lax and a state wants to be stricter on it, but it’s not out of the realm of possibility that that would be something federal courts would allow states to do,” Hudak said.
What’s more, even if state-level prohibitions did end as a result of CSA descheduling, it would be without precedent for the federal government to dictate that they implement a regulated, commercial marijuana market. Instead, a situation could hypothetically emerge where cannabis would be legal, but there would be limited means of access, as is currently the case in Washington, D.C., where Congress has prohibited the district from using its local tax dollars to create a regulated system of sales.
“A president certainly cannot force that to be allowed in states by any kind of executive action,” he said. “It would really require an act of Congress to set up a commercial regulatory system nationwide, which, even then, you are on very shaky constitutional grounds to do that kind of thing.”
It’s also possible that Sanders could leverage federal funds to pressure states into adopting the policy change, requiring them to end cannabis prohibition as a condition of receiving certain dollars. That’s how Congress achieved setting a national drinking age minimum of 21, for example, by threatening to withhold 10 percent of federal highway construction funds if states didn’t comply.
The question of how to compel states to end their own cannabis criminalization laws aside, there are major hurdles to changing marijuana’s status under federal law by a president in the first place.
An Executive Order Can’t Get Around Regulatory Requirements
“There are procedures that have to be followed to remove it,” Sam Kamin, a law professor at the University of Denver, told Marijuana Moment. “It might not take months or years, but it certainly won’t be the first afternoon of the Sanders presidency.”
Hudak agreed: “An executive order is not a means by which a president can do this. Presidents need to draw on statutory authority or constitutional authority in order to use an executive order to make some sort of policy change. The president is explicitly restricted by the Controlled Substances Act from doing this through a non-regulatory process, and the Supreme Court has ruled repeatedly that Congress’s policy choices in the CSA are constitutional and within their power. It does not grant constitutional authority to the president in any of those rulings. No, President Sanders or President Anyone cannot do this by executive order.”
International Drug Treaties Could Complicate Things
And then there’s the question of international law. Opponents of ending prohibition often point to global drug treaties to which the U.S. is a party that technically require member nations to keep marijuana illegal.
A Sanders administration could hypothetically withdraw the U.S. from the treaties, as past presidents have done to advance policies that run counter to international agreements. President Bush withdrew from the Anti-Ballistic Missiles Treaty in 2001, for example, and while it was challenged in a lawsuit, a federal district court dismissed the case, setting a precedent.
A 2016 legal brief from the Congressional Research Service discussed the ambiguity of withdrawal procedures for Senate-approved treaties like the Single Convention on drugs. While the Senate is empowered to “advise and consent” in the drafting of treaties, the statute is “silent with respect the power to withdraw from them.” There have been past instances where “the President has unilaterally terminated treaties without any form of legislative approval,” but in other cases, Congress has either given advance authorization or approved a withdrawal after the fact.
All that said, there’s a more simple workaround to the treaty problem: Sanders could just ignore it altogether, as Canada and Uruguay have when they legalized marijuana nationwide. Because treaty obligations are sometimes flouted by the U.S. and other countries when they’re inconvenient and because they often lack enforcement capabilities, experts who spoke to Marijuana Moment broadly dismissed the notion that a Sanders presidency would be inhibited by international bodies like the United Nations (UN).
“The Single Convention has absolutely no impact on President Sanders’s or any president’s ability to do this—or Congress’s for that matter,” Hudak said. “Under that obligation, yes, the federal government is not supposed to do this. But also there’s really no enforcement mechanism in international organizations to do anything about it, and what we’ve seen is international organizations have not done anything about it. If the UN is not going to punish Uruguay, I don’t think they’re going to punish the United States.”
Sanders’s Campaign Won’t Explain Its Plan
It’s possible that Sanders’s team could take some proactive steps to work around all of these statutory rules, including the treaty obligations. For example, it could work with incoming personnel for the Justice Department’s Office of Legal Counsel (OLC) during the transition between the election and inauguration day to draft a memo stipulating that the executive order can stand, and so when it’s issued on day one, the administration could point to that document and justify the action. It’s still possible that a court could later challenge the legal reasoning, however.
Marijuana Moment reached out several times to Sanders aides for specifics on exactly how the candidate plans to “legalize marijuana in every state in this country” via executive order on his first day in office, but they did not respond by the time of publication.
Warren Gunnels, a senior adviser on the senator’s campaign, wrote in a Twitter post on Sunday that not only would cannabis be legalized on day one, but the executive order would be signed at 4:20 PM, referencing the unofficial marijuana holiday 4/20 that is rumored to have been inspired by a group of high school students who met at that designated time to smoke in the early 1970s.
“On my 1st day in office through executive order we'll legalize marijuana in every state in this country. We'll move forward to expunge the records of those arrested for possession of marijuana," Bernie Sanders
Day 1. All 50 states. 4:20pm. Let's do it.https://t.co/EShrrmRVbF
— Warren Gunnels (@GunnelsWarren) February 2, 2020
Even If Unfeasible, Sanders’s Pledge Has Political Value For Reformers
Despite these obstacles, some legalization advocates view Sanders’s promise as a politically important, if symbolic, proposal.
“There are open questions about if and how a president could technically deschedule, as opposed to reschedule, marijuana on Day 1 via a simple executive order,” Erik Altieri, executive director of NORML, told Marijuana Moment. “There is and will be much debate about the technicalities, but what is truly important about this recent pledge is that for the first time in political history we have a front-runner for a major party nomination treating marijuana policy as a top-tier issue.”
“With around 68 percent of all Americans supporting legalization, committing to quickly bring prohibition to an end upon entering office is good policy and good politics,” he said. “We greatly appreciate Sanders’s strong support for marijuana legalization and would hope all current candidates join us on the right side of history by making similar pledges.”
“Executive order or not, if we had a president who elevated marijuana policy and backed it using the bully pulpit in this way, it would undoubtedly apply even further pressure for Congress to take action on important pending legislation such as the MORE Act,” he said, referring to a bill to deschedule cannabis and promote social equity that was approved by the House Judiciary Committee last year.
Others aren’t so bullish on Sanders’s decision to pitch an expedited legalization agenda, arguing that it’s practically ambitious at best and politically dangerous at worst.
“I think frankly it’s political pandering,” Hudak said. “The Sanders [original 100-day plan] is a very effective administrative strategy to make sure that all the i’s are dotted and t’s are crossed. To step away from that and effectively do a liberal version of President Trump’s behavior—and that is, ‘let me do this via executive order and be damned what the Constitution or statute say’—is not something a lot of Democrats really have an appetite for right now.”
“I think, what’s worse, even if in a scenario where this were somehow upheld by an increasingly conservative federal judiciary, what is then-President Sanders doing? He’s setting up a system in which four or eight years later, a Republican president can come in and undo with the stroke of a pen,” he said. “I don’t think any cannabis reformer wants cannabis policy to be set in a way that drastically can change from presidency to presidency.”
“I understand the senator’s frustration that Congress hasn’t acted on this, but there are a lot of unintended consequences that come with unilateral action when that unilateral action is not thought through statutorily, constitutionally or in terms of just basic policy impact,” he added.
Kamin, the law professor in Denver, said that Sanders’s proposal “is not one that comports with the separation of powers and federalism.”
“Whether you call that symbolic or whether you call that metaphorical or whether you call that puffery, what Sanders is signaling is, ‘I want to be the federal legalization candidate.’ The race was once crowded with senators who had legalization plans. [Sen. Elizabeth Warren (D-MA)] is probably the principle person left in the race who has proposed legalization at the federal level. What I see there is Senator Sanders trying to claim that issue for himself.”
Steve Fox, president of VS Strategies, the public affairs consulting arm of the Vicente Sederberg LLP law firm, told Marijuana Moment that even if Sanders successfully moved to reclassify marijuana under federal law, it wouldn’t mean that the penalties against it would be automatically erased from the law books.
“I certainly appreciate the sentiment behind Senator Sanders’s pledge, but I believe he would not be able to go as far as he suggests through an executive order,” he said.
“I think rescheduling would be possible, given that a DEA administrative law judge recommended rescheduling in 1988 and that recommendation was never followed. But marijuana’s penalties under federal law are not connected to its scheduling,” Fox said. “The law provides specific penalties based on the amount of marijuana one possesses. As far as I understand, an executive order cannot be used to simply eliminate crimes from the U.S. Code that a president doesn’t like.”
“If marijuana is going to be legal at the federal level, it will take an act of Congress,” he said.
Douglas Berman, a professor at Ohio State University’s Moritz College of Law and author of the Sentencing Law & Policy blog, falls somewhere in the middle on the question of Sanders’s ability to actually achieve unilateral descheduling versus the political implications of simply pledging to do so.
“In many respects to me, this a version of ‘build a wall and have Mexico pay for it,'” Berman told Marijuana Moment, referring to an unfulfilled Trump campaign promise. “Nobody actually thinks we’re going to get Mexico to pay for it, but when you articulate it in these terms, you’re sending a signal that this is not just something that you’re committed to—but committed to with every fiber that you can muster.”
“I think, yes, that’s just politics, but it’s politics that has really important policy consequences if you were the standard-bearer for the Democratic party and ultimately president,” he said. “That’s why supporters of reform should be excited to hear, even if they know, ‘yeah, he can’t really get this done'” as proposed.
Photo courtesy of Lorie Shaull.
Majority Of Connecticut Residents Back Marijuana Legalization And Expungements, Poll Finds As Reform Bills Advance
As bills to legalize marijuana in Connecticut move through the legislature, a new poll finds that the reform has strong support among residents.
The survey from Sacred Heart University (SHU), released on Tuesday, found that about 66 percent of people in the state favor legalizing cannabis for adult use, while 27 percent are opposed.
If the policy change is enacted, 62 percent said those with prior marijuana convictions should have their records expunged.
Younger people and those who identify as Democrats were more likely to back ending prohibition, compared to those 65 and older or Republicans.
Further, the poll asked about perceived harms of cannabis, and 77 percent said they felt the plant carried “fewer effects” or comparable effects as alcohol. About 72 percent drew the same contrast between marijuana and other drugs such as heroin, amphetamines and prescription painkillers.
These figures are largely consistent with a previous poll that SHU conducted in February.
And like that prior survey, nearly half of Connecticut residents again expressed that they still believe that there are potential negative public safety implications of legalization, even if they support the policy. In this case, 48 percent said they agree that allowing recreational cannabis would lead to a “significant” increase in impaired driving.
Two in five respondents said they agree that marijuana is a gateway to other drugs. The poll involved interviews with 1,000 residents from March 23-31.
But while these figures largely align with the last SHU survey, one thing that has changed is that reform legislation has started to advance in the legislature, including a bill being backed by the governor.
The Judiciary Committee approved Gov. Ned Lamont’s (D) proposal, which was amended to more comprehensively address social equity issues, last week. That said, legislative leaders have indicated that the bill is fluid and will likely see additional revisions down the road.
A competing legalization measure from Rep. Robyn Porter (D) was approved in the Labor and Public Employees Committee last month.
One amendment that was adopted to the governor’s bill would provide for the free erasure of past marijuana convictions for possession or sales of up to four ounces of cannabis or six mature plants—a policy that is evidently backed by most residents in the state.
Lamont, who convened an informal work group in recent months to make recommendations on the policy change, initially described his legalization plan as a “comprehensive framework for the cultivation, manufacture, sale, possession, use, and taxation of cannabis that prioritizes public health, public safety, and social justice.”
For his part, House Speaker Matthew Ritter (D) said last month that “optimism abounds” as lawmakers work to merge proposals into a final legalization bill.
Majority Leader Jason Rojas (D) said “in principle, equity is important to both the administration and the legislature, and we’re going to work through those details.”
To that end, the majority leader said that working groups have been formed in the Democratic caucuses of the legislature to go through the governor’s proposal and the committee-approved reform bill.
In February, a Lamont administration official stressed during a hearing in the House Judiciary Committee that Lamont’s proposal it is “not a final bill,” and they want activists “at the table” to further inform the legislation.
The legislature has considered legalization proposals on several occasions in recent years, including a bill that Democrats introduced last year on the governor’s behalf. Those bills stalled, however.
Lamont reiterated his support for legalizing marijuana during his annual State of the State address in January, stating that he would be working with the legislature to advance the reform this session.
Ritter said in November that legalization in the state is “inevitable.” He added later that month that “I think it’s got a 50–50 chance of passing [in 2021], and I think you should have a vote regardless.” The governor said in an interview earlier this year that he puts the odds of his legislation passing at “60-40 percent chance.”
Should that effort fail, the speaker said he will move to put a constitutional question on the state’s 2022 ballot that would leave the matter to voters. Lamont made similar remarks last week.
The governor has compared the need for regional coordination on marijuana policy to the coronavirus response, stating that officials have “got to think regionally when it comes to how we deal with the pandemic—and I think we have to think regionally when it comes to marijuana, as well.”
He also said that legalization in Connecticut could potentially reduce the spread of COVID-19 by limiting out-of-state trips to purchase legal cannabis in neighboring states such as Massachusetts and New Jersey.
Photo courtesy of Mike Latimer.
Remembering Cannabis Legalization Pioneer Steve Fox
This post is a remembrance of longtime cannabis policy activist Steve Fox from his colleagues at VS Strategies and Vicente Sederberg LLP.
Dear Family, Friends, and Colleagues,
We are truly heartbroken to share news of the passing of our partner and dear friend Steve Fox. Steve served as managing partner of VS Strategies since co-founding it in 2013, and he was a leader at Vicente Sederberg LLP since its formation in 2010.
We welcome the celebration of Steve’s life through the sharing of thoughts and memories, and we ask for respect and privacy for his family, friends, and coworkers who are still reeling from this loss. We have also started a GoFundMe page to support Steve’s wife and daughters as they navigate their way through this extremely difficult time—https://www.gofundme.com/f/support-the-family-of-steve-fox
With wisdom beyond his years and a pioneering spirit, Steve was an “old soul” with a knack for seeing things in a new light. He was strongly principled, deeply empathic, and fiercely kind. And despite his usually soft-spoken and lighthearted demeanor, his opinions rarely went unheard and always carried significant weight.
His passion for politics and policy were exceeded only by his passion for people—his family, friends, and colleagues, as well as the multitude of strangers that he knew were being affected every day by politics and policy. He had a burning desire and uncanny ability to envision and effect positive change, both societally and in those closest to him. He was not just a remarkable human being, but a truly transformational leader.
Steve was always the first to volunteer and the last to seek credit. He was beyond generous with his time and patience, and perpetually understanding. He relished opportunities to provide counsel and guidance, and the feeling was mutual for those who received it. He was warmly regarded as a mentor by no fewer than a dozen current and former members of our firm, including all seven of us.
Steve was one of the first political professionals to enter the marijuana advocacy space. At a time when cannabis policy was just a blip on the political radar and most savvy up-and-comers were unwilling to dip a toe into the space, Steve dove in headfirst. While many viewed it as a losing cause that wasn’t worth the fight, he saw it as a cause worth fighting until it was won. And in working to legalize and regulate cannabis for medical and adult use, he found a way to fight simultaneously for several of his core values: To promote justice and compassion, to advance freedom and liberty, and to nurture and inspire the human spirit. Humbly righteous, judiciously aggressive, and relentlessly ethical, he was committed to doing the right thing, doing it the right way, and doing whatever it takes to get it done.
When he joined the Marijuana Policy Project in 2002, Steve was the only full-time cannabis lobbyist on Capitol Hill. He would remain at the forefront of the cannabis policy reform movement for nearly two decades, playing pivotal roles in several major victories at the federal and state levels.
Steve was a lead drafter of Colorado’s historic Amendment 64, which legalized cannabis for adult use, and he managed all aspects of the successful campaign behind its passage and implementation. He also conceptualized and co-founded Safer Alternative For Enjoyable Recreation (SAFER), which laid a lot of groundwork for the legalization effort and contributed to a seismic shift in the U.S. cannabis policy debate. In 2009, he co-authored the book “Marijuana Is Safer: So why are we driving people to drink?,” which is based on the SAFER strategy.
Steve was always thinking step ahead of the rest. Long before cannabis was legalized, he envisioned a legal, organized, and responsible cannabis industry. He played leading roles in conceptualizing and establishing several of the nation’s largest and most influential cannabis trade organizations, including the National Cannabis Industry Association, the Cannabis Trade Federation, and the U.S. Cannabis Council. He regularly led working group meetings and calls, and he was a frequent speaker at cannabis conferences.
Steve’s role in cannabis community cannot be overstated. He was a trailblazer in the movement to end prohibition, and he was an architect and caretaker of the legal industry that is quickly replacing it. He beat the path, built the shelter, and worked tirelessly to make it as welcoming, accessible and beneficial as possible. He always put the mission—the wellbeing of others and the betterment of society—ahead of himself.
No one was more reluctant to sing their own praises while being so deserving of a louder refrain.
In 2013, Steve received a highly esteemed award from the Drug Policy Alliance in recognition of his long-term spearheading of the Colorado legalization effort. With an audience of hundreds and the spotlight squarely on him, he used the better part of his brief acceptance speech to give recognition to the people and organizations who had supported and worked alongside him. He reserved only the final thought for his own personal message and dedication. It was to his parents, for raising him to believe in the Jewish philosophy “Tikkun olam”—to “repair or heal the world” through beneficial and constructive acts. That is what drove Steve to take on the cause of cannabis policy reform. And it was what drove Steve to be the person he was.
Tikkun olam. Mission accomplished, dear friend.
And the entire VSS and VS family
Biden’s Pick To Lead DEA Voiced Openness To State Medical Marijuana Program
President Joe Biden’s nominee to lead the Drug Enforcement Administration (DEA) previously described a New Jersey medical marijuana bill as “workable” while serving at the state’s attorney general.
Although the former top state prosecutor, Anne Milgram, doesn’t appear to have publicly detailed her personal views on cannabis reform, the limited comments she made over a decade ago signal that, at the very least, she’s open to allowing states to enact their own marijuana policies despite federal prohibition.
That’d be a big deal, as far as advocates are concerned. Having a DEA administrator who appears flexible with respect to state cannabis reform efforts would be a notable development given the role that the official plays in federal marijuana policy.
However, Milgram’s on-the-record remarks on the issue are admittedly minimal. In 2009, when the New Jersey legislature was considering a medical cannabis legalization bill, she called the proposal “workable,” according to a one-word quote included in an Associated Press report.
After the legislation was amended, a spokesperson for the then-attorney general said the change “tightens up the provisions…that could have become loopholes by people seeking to divert marijuana for illicit purposes.”
Biden announced Milgram as his pick to be the next DEA administrator on Monday, and now her nomination heads to the Senate. It is possible that she will be asked to elaborate on her views during a confirmation hearing before the Judiciary Committee.
Milgram’s prior statements are far from an explicit endorsement of medical cannabis legalization, but they do indicate that the nominee is not vociferously opposed to state-level reforms as has been the case for prior DEA administrators. And in combination with other Biden cabinet picks, that bodes well for advocates.
Attorney General Merrick Garland made clear during his oral and written testimony before the Senate, for example, that he does not feel the Justice Department should use its resources to go after people acting in compliance with state marijuana laws. That stands in contrast with President Donald Trump’s first selection for attorney general, Jeff Sessions, who rescinded Obama-era guidance deprioritizing prosecutions over state-legal cannabis activity.
The DEA, with authority delegated from the Department of Justice, plays an important role in determining the schedule status of marijuana and other drugs. If the agency’s administrator were to acknowledge the medical benefits of cannabis, it would deeply undermine its current classification in Schedule I, which is supposed to be reserved for substances with no therapeutic value.
That said, while the Justice Department and DEA play a key role in federal scheduling, a medical and scientific review by the Department of Health and Human Services (HHS) and the Food and Drug Administration is binding on the attorney general’s classification decision.
To that end, the former attorney general of California, Xavier Bacerra, was confirmed by the Senate to lead HHS, and he has a considerable record supporting cannabis reform and working to protect California’s legal program from federal interference.
Meanwhile, Biden has yet to nominate someone to run the federal Office of National Drug Control Policy (ONDCP), despite earlier reporting that a selection was imminent.
The presumed leading candidate to be White House drug czar—Rahul Gupta, the former chair of the West Virginia Medical Cannabis Advisory Board—has played a critical role in overseeing the implementation and expansion of a state medical marijuana program and has publicly recognized both the therapeutic and economic potential of cannabis reform.
But while any pro-reform appointment is notable in the new administration, the DEA administrator has played a historically antagonistic role opposing federal or state policy changes as they concern cannabis. And so Milgram would stand out as an especially significant pick to that end.
The nominee would be taking over the defense to a number of pending lawsuits from marijuana and psychedelics reform advocates and patients if confirmed.
For example, Seattle doctor hoping to expand access to psilocybin mushrooms for terminally ill cancer patients is taking DEA to court over the agency’s recent denial of an application to legally use the psychedelic in end-of-life treatment.
Scientists and veterans sued the federal agency last year, arguing that the legal basis DEA has used to justify keeping marijuana in Schedule I of the Controlled Substances Act is unconstitutional. They asked for a review of its decisions to reject rescheduling petitions in 2020, 2016 and 1992. DEA subsequently requested that the court dismiss that suit.
The agency has also been taken to court over delays in approving additional cannabis manufacturers for research purposes.
The Scottsdale Research Institute alleged that DEA has been deliberately using delay tactics to avoid approving cultivation applications. A court mandated that the agency take steps to make good on its promise, and that suit was dropped after DEA provided a status update.
In March 2020, DEA finally unveiled a revised rule change proposal that it said was necessary due to the high volume of applicants and to address potential complications related to international treaties to which the U.S. is a party.