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Marijuana advocates and Democratic lawmakers are calling for President Joe Biden to take action to protect state-licensed cannabis businesses from federal intervention under the incoming Trump administration.
Last week, the Drug Policy Alliance (DPA) published a proposed executive order that would instruct federal agencies to reform their marijuana policies if the order were issued by the president. A coalition of congressional lawmakers chimed in and called for Biden to expand weed pardons and stop Border Patrol from seizing cannabis from state-approved companies.
The DPA’s proposed order outlines a number of actions that President Biden could take before he leaves office that would have an immediate impact on federal policies, highlighting actions that the president could have taken at any point during his term.
The DPA is calling for the president to create a National Advisory Council to Advance Equity and Public Health in Federal Cannabis Policy and Programs that would advise the president and the federal government on marijuana policies and advocate for ending prohibition and repairing the harms of the War On Some Drugs.
The proposed order would give the White House the job of coordinating federal agencies to advance equity and public health in federal marijuana policies and programs. The Department of Health and Human Services (HHS), the National Institutes of Health (NIH) and Centers for Disease Control and Prevention (CDC) would be ordered to research the public health impacts of legalizing marijuana. The Department of Veterans Affairs (VA) would be tasked with addressing barriers to veteran access to medical marijuana, the Treasury Department would be ordered to weigh in on marijuana banking issues and many other departments would be given explicit missions to advance progressive marijuana policies in every government sector.
If Biden were to adopt the DPA’s proposed order, the DOJ would also officially reinstate the Cole Memo — an Obama-era direction prohibiting federal prosecutors from going after state-legal cannabis businesses that was rescinded by former Trump Attorney General Jeff Sessions.
Meanwhile, a letter signed by 14 Democratic lawmakers, including U.S. Sen. Ben Ray Luján, urged President Biden to expand his previous cannabis pardons by commuting and reducing sentences for an estimated 3,000 individuals who are currently incarcerated in federal prisons for cannabis-related offenses.
Biden’s previous clemency action was the pardoning of people who had been arrested for federal-level simple marijuana possession, attempted simple possession of marijuana or use of marijuana. As the lawmakers’ letter points out, that round of pardons failed to release any actual prisoners, because simple marijuana possession is usually a state-level crime.
The letter also calls for Biden to order an end to federal seizure of state-licensed marijuana, specifically citing Border Patrol’s seizures of state-approved weed products at interior checkpoints, an ongoing issue that has vexed New Mexico businesses for the last year.
Many of these executive order suggestions would merely make the Biden administration’s implicit support for marijuana policy reform explicit. While the incoming administration could reverse some of those reforms before they take effect, it would be a much tougher job with those orders in place. And some — such as the proposed clemency actions — would be irreversible.
These are the final days of the Biden administration, and although Trump himself has voiced support for the decriminalization of marijuana, the most influential member of the administration regarding weed policy will be whoever is appointed attorney general.
Former Rep. Matt Gaetz (R-FL) was Trump’s first choice for the role. The former lawmaker has a record of supporting marijuana legalization at both the state and federal level.
But Gaetz withdrew himself from the nomination following scrutiny from the House Ethics Committee over alleged sexual misconduct, and cannabis industry stakeholders are once again left wondering what a Trump-led DOJ might look like.
Trump has now nominated former Florida Attorney General Pam Bondi, who fought against the legalization of medical marijuana in her state but has remained quiet on the topic since her recent nomination. While some cannabis leaders like Truelive CEO Kim Rivers (who characterized Bondi as “straight forward and very fair”) are optimistic, her less-than-positive track record with weed will likely make others nervous.
The U.S. attorney general has great power over whether state-level marijuana markets will be tolerated by the DOJ. It’s their job to decide federal prosecution policy for marijuana businesses. While it’s unlikely that a new appointee of any leaning would choose to go to war with the governments of half the states, the possibility can’t be completely ruled out.
The attorney general’s role in the rescheduling of marijuana may also trouble weed industry stakeholders, since the Drug Enforcement Administration (DEA) has the final say in whether the drug is reclassified under the Controlled Substances Act.
The DEA has been dragging its feet in making the decision — an issue the Democratic lawmakers addressed in their letter to Biden. And it’s no secret that current Attorney General Merrick Garland went around the DEA when announcing that the agency had accepted HHS’s recommendation to reschedule.
If the DEA fails to complete the process before the new administration takes power, the new attorney general will be in a position to order the DEA to drop the plan altogether.