Can the Biden administration postpone cannabis?

Last month, Senators Elizabeth Warren and Cory Booker petitioned US Attorney General Merrick Garland to initiate proceedings under the Controlled Substances Act (CSA) to move cannabis. As stated in the letter to Garland, this would “decriminalize” marijuana.

The power of the CSA

The letter outlines the hypocrisy of the current classification of marijuana as a List I substance, reserved for the most dangerous drugs:

The CSA imposes criminal sanctions for the use and distribution of certain drugs, the severity of which varies depending on the “schedule” of the drug in question. A List I drug is classified as “no currently accepted medical use” and “high potential for abuse”. The CSA currently classifies cannabis as a List I substance alongside substances such as heroin and ecstasy. In contrast, more harmful substances such as cocaine and OxyContin are classified as Category II substances, which are less strictly regulated. (Quotes omitted).

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The part of the CSA that authorizes the Attorney General (AG) to assign substances is codified as Title 21 of the US Code, Section 811 (21 USC 811). Under that law, the “attorney general may, by rule, remove any drug or other substance from the lists if he determines that the drug or other substance does not meet the requirements for inclusion on a schedule.” 21 USC 811 (a) ( 2).

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Before a set of rules is introduced to remove a drug from a schedule, the Department of Health (HHS) must assess the substance. If the HHS secretary recommends postponing a drug, that decision will be binding on the attorney general. However, if the HHS secretary recommends postponing the material or staying on the current schedule, this is not binding on the client. For the purposes of the CSA, the Attorney General delegates his powers to the DEA and the HHS delegates his powers to the Food and Drug Administration (FDA).

Where does Joe Biden stand?

When President Joe Biden appointed members to his cabinet last year, we introduced future Attorney General Merrick Garland and future HHS Secretary Xavier Becerra. Of the two cabinet members, Becerra has the better cannabis credentials, having served as the California state attorney general. When Jeff Sessions overturned the Cole Memo in January 2018, Xavier Becerra criticized the move and vowed to comply with California law regarding marijuana. Garland’s position on cannabis is less clear, but as attorney general, he has made no effort to crack down on cannabis since heading the Justice Department.

RELATED: No, President Biden cannot legalize or move weed, even with an executive order

The Biden administration has the power to move cannabis through various agencies under the executive branch, namely the Department of Justice and the HHS. However, just because Joe Biden’s government has the power to reschedule its dates, it doesn’t mean the government will reschedule its dates. After all, Joe Biden has shown no support for cannabis legalization after firing employees for using marijuana at the beginning of his tenure. More recently, the Biden government has maintained harmful practices punishing those who choose to use marijuana.

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While Biden wasn’t for cannabis, it’s not clear whether Biden would stop Garland and Becerra from moving cannabis as requested in the Warren and Booker letter. Biden has powers to remove both Becerra and Garland from office.

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It doesn’t appear that Garland or Beccera are interested in rescheduling the date as there has been no public effort to do so since receiving the letter from Booker and Warren. Furthermore, the mere move of cannabis to the federal level is an imperfect way to legalize cannabis. If cannabis were postponed tomorrow, it would have some great benefits. For one, IRC 280E would no longer apply to cannabis companies, allowing companies to make the usual deductions as it only affects List I and II substances. In addition, federal criminal penalties related to cannabis would no longer apply if cannabis is decriminalized.

Bottom line

However, decriminalization would not create a legal federal market. It could lead to a race to the bottom as states relax environmental and pesticide regulations to attract companies to their local market. Also, debt relief alone does not address many of the top legalization concerns, such as the need for social justice and consumer protection. In order to establish a strictly regulated national cannabis market, Congress must pass comprehensive cannabis laws. Getting a bill through the House of Representatives to legalize it is realistic, but getting a bill through the Senate goes a long way because of the filibuster. At the very least, Warren and Booker’s letter should motivate their colleagues to make federal cannabis reform a priority. If not, the future of cannabis may be shaped by executive agencies rather than the legislature.

Daniel Shortt is a Seattle, Washington-based corporate and regulatory attorney who works extensively with entrepreneurs in the cannabis industry. You can reach him at info @gl-lg.com or (206) 430-1336.

This article originally appeared in the Green Light Law Group and was republished with permission.