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GOP Congressman Worries Impeachment Might Hurt Marijuana Reform

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Marijuana legislation seems to be gaining traction on Capitol Hill during what is undoubtedly the most cannabis-friendly Congress in history, with the House already passing an amendment this year to shield local legalization laws from federal interference as well as approving a bill to let state-licensed businesses access banks.

But as the Senate prepares to more seriously consider far-reaching cannabis proposals, one Republican congressman who backs ending federal prohibition is concerned that impeachment proceedings against President Donald Trump could undermine the bipartisan momentum that has been pushing marijuana reform forward in 2019 to date.

“I think the impeachment thing is not going to be helpful to getting much done between now and November 2020, which is a shame because we have some serious issues that we need to address,” Rep. David Joyce (R-OH) said in an interview. “I haven’t seen any facts that say whether the president will be impeached or not, but I do think that there are going to be a lot of raw nerves out there.”

NORML Political Director Justin Strekal praised Joyce—who is a co-chair of the Congressional Cannabis Caucus—for his leadership role on the issue, but said he is hopeful that disputes over impeachment will not endanger reform efforts.

“Congressman Joyce has been instrumental in building support for marijuana policy among Republicans in the House and it’s our hope that the goodwill built will not be jettisoned over differences in unrelated matters such as impeachment,” he said.

Joyce, who sat down to answer questions following an on-stage appearance with Rep. Earl Blumenauer (D-OR) and former Rep. Carlos Curbelo (R-FL) at the Institutional Capital & Cannabis conference in Manhattan on Monday, also addressed an emerging dispute between progressives who say marijuana legislation must include restorative justice provisions and conservatives who want only a narrow states’ rights approach.

“I think when you put too much that’s not germane on the issue—what’s called loading up the Christmas tree, eventually the tree is going to tip over,” he said. “People are like, ‘this is not what I signed up for.’ I understand what they’re talking about, the criminal justice issues, and I do think there’s a need for criminal justice reform, and they should be taken care of in a criminal justice reform bill and let this one stand on its own.”

The question of how far to go in repairing the past harms of the drug war has divided legalization advocates, some of whom say including far-reaching social equity provisions in any cannabis legislation that advances is a necessity, while others are concerned that anything but a simple states’ rights approach is dead in the water in the Senate and could jeopardize the chances of getting a win across the finish line before the end of the 116th Congress.

Some advocates were upset, for example, that the Democratic-controlled House passed a marijuana banking bill last month before advancing broader legislation to deschedule cannabis and address social equity issues.

Looking ahead, the House is expected to next take up a bill—the Marijuana Opportunity Reinvestment and Expungement (MORE) Act—filed by Judiciary Committee Chairman Jerrold Nadler (D-NY) that would remove marijuana from the Controlled Substances Act and fund programs to undo the damage of the war on drugs.

Strekal, of NORML, argued that “supporters of ending prohibition must see the connection between criminalization and those who have been harmed by its enforcement.”

“In just seven years, we have moved from state initiatives that ignored the reparative justice components in Washington State to those that embody them with full expungements such as in Illinois,” he said. “This political evolution must translate to the federal level and is broadly supported by a majority of Americans, regardless of political ideology.”

While most advocates support efforts to help people harmed by prohibition, some are focused on advancing a more limited proposal that would simply leave the issue of marijuana to the states, which they believe can pass the Senate over the course of the next year. President Trump has indicated he would sign that legislation, the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act.

Joyce is the lead GOP cosponsor of the latter bill in the House, and in the interview wouldn’t commit to voting for the more far-reaching legislation that Democrats seem determined to bring to the floor of that chamber, though he acknowledged that his support as a member of the minority party might not be needed.

“I don’t know what’s going to be in the final [version] but, I do think it doesn’t matter—they have the ability to pass it out of the House because they’re in the majority,” the congressman said.

But just passing the House won’t be enough to actually change federal policy.

“It doesn’t go anywhere in the Senate,” Joyce said. “I play the long game. At the end of the day, I want to win. Messaging bills, they drive me nuts because, ‘oh yeah we stood up for this, we passed this bill.’ Where’s it go? It goes nowhere.”

“The social issues will bog the issues down when it gets to the Senate,” he argued.

Closer to home, Joyce thinks that his state of Ohio could end up legalizing marijuana in the near future.

Voters there defeated a cannabis legalization measure in 2015 that even some longtime advocates opposed because it had written-in control of cannabis cultivation operations by the very donors who paid to qualify the initiative for the ballot.

“This time around, I think if you just went as an issue, it would probably stand a better chance because people are coming around to it more,” he said.

While the congressman acknowledges that Ohio is “a very conservative state for the most part when it comes to this,” he said that over time more voters will come to understand that legalization will help to “suppress and eliminate the black market.”

Back on Capitol Hill, Joyce is optimistic about the prospects for federal marijuana reform sooner or later, despite concerns about impeachment and social equity provisions—especially if more of his colleagues take the step of personally touring state-regulated cannabis businesses.

“Go see what a dispensary looks like, go see what a processor looks like, go see what a grow facility looks like,” he said. “If you can get them to do that, then you get them on the path to saying, ‘OK, now why wouldn’t you regulate this industry and why wouldn’t you let it go on like any other ongoing concern?’ Legally the state has formed a legal background to allow it to operate as an entity, so why not give it the same things you would any other business entity?”

This piece was first published by Forbes.

Image element courtesy of Tim Evanson.

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.

Tom Angell is the editor of Marijuana Moment. A 15-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

Politics

Supreme Court Justices Discuss Marijuana Policy During Immigration Case Arguments

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A Supreme Court hearing on Tuesday concerning the fate of a program protecting immigrants brought to the U.S. as children featured a brief conversation about federal marijuana enforcement policy.

Justices questioned the difference between what President Trump’s administration did—issuing memos ordering the Deferred Action for Childhood Arrivals (DACA) program to be wound down—and what the Obama administration did when his Justice Department told prosecutors not to pursue marijuana cases in states that legalized it.

During the discussion about prosecutorial discretion, Justice Samuel Alito asked if courts have jurisdiction to review or overturn instances where prosecutors make a policy change for a “certain category of drug cases,” by declining to pursue those that involved “lesser amounts of drugs.”

An attorney representing the so-called “Dreamers,” Theodore Olson, said he didn’t think it would be.

But Olson said the comparison wasn’t valid because the DACA program “invited [Dreamers] into the program, provided other statutes which have not been challenged by the government, provided benefits that were associated with that decision, and individuals relied upon that for five years.”

In other words, while the Justice Department has historically issued guidance and allowed for prosecutorial discretion for issues such as drug crimes, DACA rises to a different standard, in part because of the benefits it provided to hundreds of thousands of eligible immigrants.

Justice Neil Gorsuch, a Trump appointee, sought clarification about the “limiting principle” that the attorney was using to distinguish DACA from other prosecutorial discretion decisions.

Olson said it’s “a composite of principles” and a “categorical determination involving a substantial number of people.”

“Let me just stop you there, though, because if it’s categorical and a large number of people, I can think of a lot of prosecutorial decisions involving drug cases, the treatment of marijuana in our society today under federal law—perhaps it would be cocaine, five kilograms,” Gorsuch said in the exchange, which was first noted by Politico. “Whatever is in the attorney general memo affects lots of people on a categorical basis every day.”

The justice appeared to cite the Obama-era Cole memo as an example. That guidance, which was rescinded by then-Attorney General Jeff Sessions in early 2018, advised prosecutors to use enforcement discretion and not target state-legal cannabis programs despite ongoing federal prohibition.

“There’s an entire industry in a lot of states involving marijuana that would argue they’re relying on memos issued by the attorney general that we will not enforce marijuana laws, for example,” Gorsuch said.

“I think that is completely different,” Olson contended. “They are not invited to participate into a program, to reveal the business that they’re in, to come forward, to take advantage of benefits.”

Gorsuch countered that cannabis businesses “have a lot of economic interests at stake” and would argue that “billions of dollars are at stake [and] we’ve relied on the attorney general’s guidance memos.”

Groups Push Congress To Let D.C. Legalize Marijuana Sales

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Groups Push Congress To Let D.C. Legalize Marijuana Sales

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More than a dozen advocacy organizations sent a letter to House and Senate leadership on Wednesday, urging them to allow Washington, D.C. to implement a regulated marijuana market.

While D.C. voters approved an initiative legalizing low-level possession and home cultivation of cannabis in 2014, congressional lawmakers have attached riders to spending legislation each year since that have blocked officials in the nation’s capital from using local tax dollars to enact a retail sales component.

“It is critical that Congress support D.C.’s right to home rule and the ability to spend local tax dollars as they deem fit, especially in regard to the regulation and taxation of marijuana,” the groups—including Drug Policy Alliance (DPA), ACLU of D.C., NORML and Competitive Enterprise Institute—wrote.

In its latest spending bill for Fiscal Year 2020, the House Appropriations Committee stripped the rider from the chamber’s version of the legislation, and Rep. Andy Harris (R-MD), who has sponsored the measure in years past, didn’t attempt to reinsert it. That bill passed the House in June.

But in the Senate version, the rider remained intact, meaning that it will come down to negotiators on a bicameral conference committee to decide which version is sent to President Trump’s desk.

“Current law has interfered with the District’s efforts to regulate marijuana, which has impacted public safety,” the reform groups’ letter states. “Without the ability to regulate marijuana sales, the grey market for marijuana flourishes despite the need and want of the District leadership and residents alike to establish a regulatory model.”

“Such a model would free up law enforcement resources to focus on reducing violent crime,” it continues. “It would also allow legitimate entrepreneurs to start businesses, create jobs and spur economic development.”

The National Cannabis Industry Association, Sentencing Project, Northwestern University School of Law, Leadership Conference on Civil and Human Rights, R Street Institute and Law Enforcement Action Partnership, among other organizations, also signed the letter.

“Under these conditions—where marijuana is essentially decriminalized, but there is no legal access for adult use—D.C. has been left with a complicated grey market that is both unsafe and a far cry from the racial and economic justice promises of the Initiative 71 campaign,” Queen Adesuyi, DPA’s policy manager for national affairs, said in a press release.

“It’s time that Congress get its hands off of D.C. and allow D.C. Council, Mayor Muriel Bowser, and other relevant D.C. stakeholders to deliver on the promises of equity and justice for those disproportionately impacted by racially-biased enforcement of marijuana laws,” she said.

Bowser, who is a champion of D.C. statehood and cannabis reform, announced in May that she was sending a bill to the District Council that would provide for the retail sale of marijuana in the city. She’s repeatedly implored lawmakers to remove the rider preventing the local government from fully following through on the will of voters.

“Keep your #HandsOffDC and #RemoveTheRider preventing us from establishing a safe & equitable cannabis regime for adult use,” she wrote in October, linking to a petition. “Together, with Congresswoman [Eleanor Holmes Norton], we fight for the rights of 702,000 disenfranchised DC residents.”

Another area of interest for cannabis reform advocates as it concerns the appropriations process centers on the possible expansion of a rider shielding state marijuana laws from federal interference. Since 2014, Congress has enacted such a policy that only covers medical cannabis policies, but this year the House approved a version that would cover adult-use marijuana programs as well. However, the Senate bill contains only the current medical-focused language, meaning that it will be up to conference committee negotiators to decide.

While the current continuing resolution providing funds for federal agencies is set to expire on November 21, lawmakers are discussing another stopgap funding measure that would push the deadline to December 20.

Read the full letter on the D.C. marijuana rider below:

National DC Rider Letter Final by Marijuana Moment on Scribd

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Marijuana Prohibition Is Delaying Federal Response To Vaping Crisis, CDC Says

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Marijuana’s ongoing illegal status under federal law is delaying health officials’ response to the rise in vaping-related lung injuries and deaths, a top official with the Centers for Disease Control and Prevention (CDC) said on Wednesday.

During a hearing before the Senate Health, Education, Labor and Pensions Committee, Sen. Lisa Murkowski (R-AK) mentioned that her state is the only one in the country that hasn’t experienced reports of lung injuries due to vaping, adding that Alaska has a voter-approved legal cannabis market.

“In our state, retail marijuana is commercialized, it’s tested by our state laboratories,” the senator said. “Is the CDC providing any information to state regulatory bodies—whether it’s Alaska or other states that have legalized—on testing these products for these compounds that are our concern?”

She followed up to ask if there are “any barriers preventing federal officials from working with our state marijuana labs on this topic.”

CDC Principal Deputy Director Anne Schuchat replied that the agency is in touch with state health departments, many of which are involved in regulating the cannabis industry, and that they provide guidance. However, because marijuana remains a federally controlled substance, she said there “are some challenges with shipment of specimens [for testing] because of the scheduling of drugs.”

“I think it’s just delaying it, I don’t think it’s stopping it,” she added.

Watch the marijuana exchange at 1:54:22 into the video below:

But as numerous lawmakers stressed throughout the hearing, there’s no room for delays, as more than 2,000 Americans have experienced lung injuries from vaping and almost 40 have died. CDC recently announced that an analysis of lung fluid samples from 29 patients in 10 states turned up evidence indicating that adulterated vape cartridges containing vitamin E acetate may be the cause.

Schuchat emphasized during a separate House hearing last month that while most vaping cases seem connected to THC-containing products, the vast majority have been obtained from illicit sources that wouldn’t be subject to the same testing standards as those enforced in regulated state markets.

She made similar remarks earlier this month during an appearance on C-SPAN and suggested that federal regulation of THC products could mitigate vaping injuries.

Still, there was a case in Oregon where a man who purchased vaping products from a licensed dispensary later fell ill and died—though officials said it’s not clear whether there’s a direct link at this point. In any case, the CDC official’s point about delays due to shipping complications arising from prohibition raises concerns at a time when data is urgently needed.

Also during the Senate hearing, Mitch Zeller, director of the Food and Drug Administration’s (FDA) Center for Tobacco Products, was asked by Sen. Mike Enzi (R-WY) whether the agency has “jurisdiction over THC products and, if so, what is the authority?”

“I think on a case-by-case basis, when it comes down to the facts, if we were to take an action because of the presence of THC, it would be because the investigation has continued—because we’re going after the supply chain here,” Zeller said.  “How did these products get onto the market in the first place?”

The official noted that as a regulatory agency, FDA is not in the business of going after individuals for personal possession or use of THC products; rather they have “investigators on the ground to try to get at how did they get into the chain of distribution and commerce in the first place.”

“If we can identify the responsible party—because with THC we’re talking about an illicit compound so it’s not like someone is going to step forward and say, ‘yeah I did it’—If we can find the responsible party, if we can do the product analysis that shows that the THC is present, with or without these oils that seem to be making it worse, then in theory we could use authorities that we have under the Food, Drug and Cosmetic Act,” he said.

“We could act, depending upon the facts, under Food and Drug authorities,” he said.

The comment was quickly applauded by prohibitionist group Smart Approaches To Marijuana, which has argued that recent vaping issues represent an example of why cannabis legalization efforts should be halted.

Sen. Rand Paul (R-KY) shared a different perspective, siding with reform advocates who say that calls to prohibit vaping products in response to the crisis are misguided because that policy change could exacerbate the problem by bolstering illicit sales and leaving consumers less protected against contaminated products.

“It seems to be primarily deaths and horrific medical problems from vaping illegal products,” the senator said. “What we’re going to do in response to that is make more vaping illegal. It seems kind of counterintuitive. It seems if you make more things illegal, maybe you get more people vaping illegal products and you have more problems.”

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Photo courtesy of Senate HELP Committee.

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