With Democratic President-Elect Joe Biden set for inauguration next week – and with his party in control of both chambers of Congress (albeit the narrowest of majorities in the Senate) – cannabis legalization could, finally, get at least a debate in both houses.
There are three measures that the 117th U.S. Congress could consider during Biden’s first term: the SAFE Banking and MORE Acts – which were approved by the Democrat-controlled House in 2019 and 2020, respectively, and the STATES Act, a measure which would give states control over cannabis laws without federal interference that never made it to the House floor.
Were any of the reforms approved by Congress, responsibility for enacting and enforcing provisions of the law would be the responsibility of several government agencies led by Biden’s Cabinet picks. The SAFE Act, for example, would require regulation (and buy-in) from the Treasury Department; the MORE Act would likely involve a host of agencies, including but not limited to Health and Human Services, and the departments of Labor, Commerce, and Justice. The STATES Act would also likely hinge on support from the Justice Department and perhaps Commerce.
Many of Biden’s picks are veterans of the Obama Administration – for which the former Senator from Delaware served as vice president – such as Agriculture Secretary nominee Tom Vilsack, former Federal Reserve Chair Janet Yellen, and Domestic Policy Council Chair Susan Rice. Others, including Vice President-Elect Kamala Harris, HHS Secretary nominee Xavier Becerra (California), and Labor Secretary nominee Marty Walsh (Massachusetts), come from states that have legalized cannabis for adult use.
A host of nominees that could play a role were Congress to end federal cannabis prohibition simply have made no public statements on the issue. For example, Veterans Administration secretary pick Denis McDonough, former President Barack Obama’s chief of staff who would be responsible for implementing directives for medical cannabis use for veterans in VA care, has never indicated support or opposition for the reforms. Neither have Council of Economic Advisors Chair nominee Cecilia Rouse, a Harvard-educated economist who serves as dean of the Princeton School of Public and International Affairs; Linda Thomas-Greenfield, who served as assistant secretary of state for African affairs in the State Department’s Bureau of African Affairs from 2013 to 2017 who was tabbed as ambassador to the United Nations which has said cannabis legalization violates international drug treaties; Environmental Protection Agency Secretary nominee and current Secretary of North Carolina’s Department of Environmental Quality Michael S. Regan; nor Isabel Guzman, California’s Small Business Association Advocate nominated to lead the Small Business Administration.
In an interview discussing Biden’s cabinet picks – which still require Senate confirmation – NORML Political Director Justin Strekal explained that cannabis legalization might not be at the forefront of the new administration’s policy agenda as the nation continues to grapple with the coronavirus and the fallout from the waning days of the Trump Administration – including a possible impeachment trial in the first 100 days of the new Congress.
“Remember, there is no such thing as federal legalization, just ending federal prohibition,” Strekal said in a phone interview with Ganjapreneur. “I’d be hard-pressed to believe it will be a priority [for the administration] but I am convinced it will be a priority for the new Congress.”
Attorney General nominee Merrick Garland is likely the cabinet pick that would have the most outsized role on driving the administration’s policy on cannabis and cannabis law enforcement. Garland, who has served as a circuit judge for the Court of Appeals District of Columbia circuit since 1997, has never made public comments on broad legalization leaving us to rely on just one case to gauge how he has approached the issue.
In the 2012 case, Americans For Safe Access v Drug Enforcement Administration which examined whether the DEA had meaningfully considered the potential use for cannabis as a medical therapy, Garland joined the majority opinion which sided with the DEA.
“…because the agency’s factual findings in this case are supported by substantial evidence and because those factual findings reasonably support the agency’s final decision not to reschedule marijuana, we must uphold the agency action,” the opinion concludes.
But in all likelihood, we can expect Garland to be better for cannabis policy than, say Jeff Sessions, who rescinded the Obama-era Cole Memo shortly after assuming the AG role in the Trump Administration. Or a Bill Barr, who allegedly directed the agency’s Antitrust Division merger investigations to target cannabis businesses because of his personal distaste for the industry.
If confirmed as head of Treasury, Yellen, Strekal explained, would set the “dynamics of safe harbor” for cannabis businesses as it relates to industry’s financial rules and “to what scope they are allowed to handle money.”
Yellen has also made no overt public statements related to cannabis reforms; however, she was chair of the Federal Reserve from 2014 to 2018, during which the agency denied Denver, Colorado’s Fourth Corner Credit Union – a non-profit cooperative formed by state-licensed cannabusiness – its application for a master account, Alt-M reported at the time of the decision. That decision forced the state’s cannabis operators to continue doing business on a cash-only basis.
Secretary of Labor
Strekal had a mixed opinion on Boston, Massachusetts Mayor Marty Walsh, who is tabbed to lead the Labor Department. On one hand, Strekal said, Walsh did oppose the 2016 ballot initiative to legalize cannabis in the state but, Strekal admitted, he is “much better [on cannabis] than four years ago.”
The mayor is “very pro-union,” Strekal explained, adding that broad unionization would add “legitimacy” to the industry and help with “buy-in from local communities.” Prior to his election as Mayor of Bean Town, Walsh served as the president of the Laborer’s Union Local 223 and in 2010 was elected as secretary-treasurer and general agent of the Boston Metropolitan District Building Trades Council, a union umbrella group. In 2011, Walsh was named head of the Boston Building Trades.
It should be noted that in a 2019 interview with One37PM, Walsh said his opinions on cannabis “have not changed.”
“I will say though that the legalization has reaffirmed my commitment to making sure that we’re taking proactive steps to create a strong regulatory process that also brings much-needed equity to this new industry. Cities in other states with recreational marijuana have run into serious equity problems, both in who is profiting from the sales and where the stores are located.” – Walsh to One37PM
Following Vilsack’s nomination to lead the Agriculture Department, Jonathan Miller, the general counsel to the U.S. Hemp Roundtable, described the former Iowa governor as “a long-time champion of hemp” in an interview with Hemp Grower.
“The USDA under Vilsack recognized that ‘market research’ under the 2014 Farm Bill included product sales … and facilitate[ed] the initial growth of the program, setting the table for the 2018 Farm Bill,” Miller said in the report.
“Throughout the administration, senior aides to Vilsack and other USDA officials were always responsive to industry needs, and the U.S. Hemp Roundtable developed a strong relationship and rapport with the Vilsack team. We look forward to renewing that in January.”
In 2016, during an on-stage conversation with former President Bill Clinton at the Clinton Global Initiative, the former president remarked that he had seen a hemp crop in Milwaukee, Wisconsin that he was told sold for $1 million an acre. Vilsack remarked, “With the exception of the state of Colorado and a few other states that have legalized another product, there are not very many commodities that you can plant, Mr. President, and then grow up to get a million bucks.”
However, during his time as governor, Vilsack did adopt the National Governors Association policies on illegal drugs, which included an anti-legalization platform stating the reforms were “not a viable alternative [to enforcement], either as a philosophy or as a practical reality.”
Biden’s Pro-Cannabis Nominees Cover Commerce, Interior, and HHS
Rhode Island Gov. Gina Raimondo, nominated to lead the Commerce Department, actively pushed for legalization in her state and included adult-use legalization in her 2020 budget. The plan would have included provisions opposed by many industry activists – such as the prohibition of home cultivation, a cap on THC, and putting sales in the hand of the state like some states have in place for alcohol.
In an interview last year with the Providence Journal, Raimondo said she supported the state-run model because it is “the most controlled way to do it, arguably the safest, and the way to maximize state revenue.”
The Commerce Department is responsible for promoting economic growth, job creation, and balanced economic development – which would all be enhanced by federal legalization. A 2016 Tax Foundation report suggests a mature cannabis industry could generate up to $28 billion in tax revenues for federal, state, and local governments, including $7 billion in federal revenue: $5.5 billion from business taxes and $1.5 billion from income and payroll taxes. A Leafly report from February found that the legal U.S. cannabis market supports 243,700 jobs – and that’s without any federal changes.
Biden’s Department of Interior nominee Deb Haaland – the first Native American to hold the post – would be charged with managing and sustaining America’s lands, water, wildlife, and energy resources, in addition to upholding treaties with tribal nations. It’s a post that could have a larger role in legalization than many realize, working with the USDA to develop some cultivation rules and overseeing legalization on Tribal lands.
Haaland, who currently serves as Representative of New Mexico in Congress and is a member of the House Cannabis Caucus, voted in favor of the MORE Act last year.
“Minor drug offenses shouldn’t ruin people’s lives, but the failed drug policies in this country tear families apart and target communities of color. I’ve seen the damage done. The MORE Act is the first step to addressing policies that criminalize people of color. As a co-sponsor of this bill, I’m proud to take this step and I hope my colleagues in the Senate will take a stand for justice so it goes to the President’s desk.” – Haaland in a statement
During her first term, she introduced an amendment to protect tribal cannabis programs as part of the Fiscal Year ’20 DOJ funding package, preventing the agency from using funds to interfere with Tribe-approved cannabis reforms. The amendment was the first tribal cannabis amendment ever offered and passed on the House floor.
California Attorney General Xavier Becerra has defended his state’s legalization and, as head of HHS could oversee orders necessary to reclassify cannabis under the Controlled Substances Act. In a Los Angeles Times interview in 2017, Becerra remarked that the “federal government has to catch up and get into the 21st century” regarding cannabis law – a Secretary Bacerra could help the feds catch up.
“We have to make sure the federal government is helping us, not hindering us, when it comes to coming up with a good way to regulate it. So it behooves the federal government to pull its head from underneath the sand and start to figure out how to do this the right way. There are far more important things to worry about than whether someone’s smoking marijuana for medicinal purposes or not.” – Bacerra to the L.A. Times
On the flipside, in his role as California AG, Becerra’s office prosecuted a number of illegal cultivation cases, saying the illicit cultivation sites damage wildlife habitats, poison water, and hurt communities. In October, Becerra said the office’s Campaign Against Marijuana Planting (CAMP) program eradicated 1.1 million illegally cultivated plants across 455 sites over 13 weeks.
Bercerra also served in the U.S. House from 1993 to 2017 and during his tenure voted in favor of several cannabis-related spending bill amendments, including a 2015 provision preventing the Justice Department from using funds to enforce federal law in states that had approved cannabis reforms.
According to a Marijuana Moment analysis, Becerra voted for a rider to protect state medical cannabis programs each time it came up for a vote while he was in office. He also approved amendments to let the VA recommend medical cannabis to veterans, protect state-approved industrial hemp and CBD programs, give cannabusinesses access to traditional financial services, and boost federal hemp research.
If approved by the Senate, Biden’s cabinet would be the most diverse in the history of the U.S. and that diversity could be advantageous – rather than obstructionist – if Congress passes all (or some) of the major cannabis proposals.
When asked to grade Biden’s proposed cabinet on their cannabis positions, Strekal responded, “The burden is on them to prove themselves.”
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