President Donald Trump’s Supreme Court pick, Brett Kavanaugh, will shape the country’s legal system for decades to come if he is confirmed by the Senate. But how would the federal judge rule in cases dealing with marijuana legalization and drug policy reform?
When it comes to cannabis and the right of states to set their own laws, it’s really anybody’s guess at this point. Kavanaugh doesn’t appear to have weighed in on the issue specifically, but it’s possible he’ll be asked about his views during confirmation hearings by pro-legalization Judiciary Committee members like Sens. Cory Booker (D-NJ) or Kamala Harris (D-CA).
That said, a brief overview of the nominee’s judicial record reveals someone who routinely defers to the regulatory authority of the Food and Drug Administration (FDA), which has for decades refused to change marijuana’s restrictive status under federal law. For example, Kavanaugh sided with the majority in a 2007 case before the U.S. Court of Appeals for the District of Columbia Circuit, which determined that terminally ill patients don’t have a constitutional right to access drugs that haven’t received FDA approval.
That could set up an interesting debate if there are any legal challenges to a new “right to try” law that Trump signed in May. The policy allows seriously ill patients to access unapproved drugs— and based on the criteria, cannabis may qualify.
Kavanaugh also upheld the authority of the FDA in a 2013 case, STAT News reported. He argued that the federal agency’s procedure for approving or denying expedited approval of medical devices should be respected.
“A court is ill-equipped to second-guess that kind of agency scientific judgment.”
A 2012 case concerning drug testing—for which Kavanaugh wrote a dissenting opinion—is also revealing. The federal judge argued that mandating drug testing of government employees at specialized residential schools for at-risk youth doesn’t violate the Fourth Amendment.
“A residential school program for at-risk youth who have a history of drug problems can turn south quickly if the schools do not maintain some level of discipline,” he wrote. “To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem. That is especially true when, as here, the employees are one of the few possible conduits for drugs to enter the schools.”
Kavanaugh said that because the drug testing program is “narrowly targeted” and the government “has a strong and indeed compelling interest in maintaining a drug-free workforce,” the mandate doesn’t amount to a violation of the constitutional right against unreasonable searches and seizures.
Though these cases don’t provide an especially comprehensive window into the SCOTUS nominee’s views on marijuana specifically, they do appear to reflect a pattern: Kavanaugh puts his faith in the FDA, which has denied that marijuana has any proven medical benefits, and his interpretation of the limitations of the Fourth Amendment seems to stand in contrast to drug policy reform advocates.
Read: Here’s The Final 2018 Farm Bill That Will Legalize Hemp
The final text of the 2018 Farm Bill was released on Monday, and industrial hemp legalization made the cut. Votes to send the legislation to President Trump’s desk are expected this week.
The bipartisan provision, championed by Senate Majority Leader Mitch McConnell (R-KY), will enable U.S. farmers to cultivate, process and sell hemp, the market for which is now a multi-billion dollar industry.
Following the announcement last month that lawmakers in the Senate and House Agriculture Committees had reconciled their respective versions of the agriculture legislation—with hemp legalization in the mix—questions remained about a controversial provision in the Senate version that would ban people with felony drug convictions from participating in the hemp industry.
But a compromise was reached and the final version will allow such individuals to work for hemp businesses after 10 years.
Read the text of the final 2018 Farm Bill’s hemp provisions here, followed by explanatory statements from the conference committee:
Farm Bill Hemp Provisions by on Scribd
Marijuana Moment excerpted the above sections dealing with hemp from the full 807-page Farm Bill and committee explanatory documentation.
“While this Farm Bill is a missed opportunity, there are some good provisions,” Rep. Earl Blumenauer (D-OR) said in a press release. “One of those provisions is to roll back our senseless hemp prohibition.”
“Our forefathers would be rolling in their graves if they saw us putting restraints on a versatile product that they grew themselves. We have farmers growing thousands of acres of hemp in dozens of states across the U.S. already. You can have hemp products shipped to your doorstep. This is a mainstream, billion-dollar industry that we have made difficult for farmers. It’s past time Congress gets out of their way.”
Under the legislation, hemp would no longer be in the jurisdiction of the Justice Department. Rather, the U.S. Department of Agriculture will lightly regulate the crop.
If the bill passes and President Trump signs it, hemp legalization will go into effect on January 1, according to VoteHemp.
Watch: Sen. Mitch McConnell Uses Hemp Pen To Sign Farm Bill Legalizing The Crop
Senate Majority Leader Mitch McConnell (R-KY) signed off on the final version of the 2018 Farm Bill on Monday…and he used a pen made of marijuana’s non-psychoactive cousin, hemp, to so do.
The senator has been the leading proponent of an industrial hemp legalization provision, which recently made its way into the final version of the wide-ranging agriculture legislation.
“Making it official with my hemp pen,” McConnell wrote in a tweet that includes video of him signing off on the proposal. “Proud to have served as conferee on Farm Bill & to fight for Kentucky priorities.”
Making it official with my hemp pen!🖋️ Proud to have served as conferee on #FarmBill & to fight for #Kentucky priorities. With today's signature, my provision to legalize industrial #hemp is 1 step closer to reality. Looking forward to voting YES on this bill & sending to @POTUS pic.twitter.com/8ypwBebXy7
— Leader McConnell (@senatemajldr) December 10, 2018
“With today’s signature, my provision to legalize industrial hemp is 1 step closer to reality. Looking forward to voting YES on this bill & sending to [President Donald Trump].”
The full text of the final Farm Bill legislation is expected to be publicly released on Tuesday, with votes anticipated in the House and Senate in the coming days.
Photo courtesy of Gage Skidmore.
New York Governor May Include Marijuana Legalization In Budget Proposal Next Month
New York Gov. Andrew Cuomo (D) might just go ahead and include full marijuana legalization in his budget proposal set to come out next month, Crain’s reported on Monday.
Two state lawmakers told the outlet that they’d heard rumors about the governor’s plan, which would build on his recent efforts to put legalization on the table during the next legislative session. Cuomo instructed a working group to draft legalization legislation in August after the state Department of Health came out with a report that found the pros of ending cannabis prohibition outweigh the cons.
If the historically anti-marijuana governor, who as recently as last year was calling cannabis a “gateway drug,” did put legalization in his budget proposal, it’d mean “the state could have a fiscal framework for the program as soon as April,” Crain’s reported.
What exactly that fiscal framework would look like is unclear, and Cuomo’s office declined to comment on the report. It’s possible that the budget would account for the costs of whatever legislation the working group ultimately releases; however, since the bill has yet to be released and the governor’s proposal is expected for January, that might be cutting it close.
In 2014, reform advocates expressed disappointment after Cuomo and leading lawmakers agreed to a budget deal that did not include a medical marijuana legalization bill. Months later, Cuomo signed separate medical cannabis legislation and, in the years since, the governor has grown more amenable to broader reform—especially in the heat of a contentious primary battle against Cynthia Nixon this year.
When the state does go forward with legalization, money is going to be a point of particular interest for lawmakers and advocates, as can already be seen as a debate over a proposal to use cannabis sales tax revenue for public transit in New York City intensified last week.
Photo courtesy of Zack Seward.