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Federal Marijuana Laws & the Incoming Biden Administration

01/20/2021
photo of president joe biden and vice president kamala harris walking on stage

The incoming Biden administration is undoubtedly bringing major changes – some planned even on the first day! – and by default, will be more progressive than the outgoing administration.  Most changes will be a welcomed breath of fresh air, but for marijuana users what the new administration means for marijuana legalization #1 on their list of priorities. 

picture of vice president kampala harris and president joe biden pointing to people in the crowd of supporters

Already Biden has pledged to decriminalize weed and expunge prior convictions, potentially releasing folks serving prison sentences for weed-related arrests.  And it’s fairly likely that he will reinstate the Obama-era memo to the Department of Justice (DOJ) to not interfere with state marijuana laws and business.  

The ‘right-direction’ steps are completely different from the staunch opponents of the outgoing administration, but what does all of this really mean?  And will it be as easy as *snap!* we have a new democratic/liberal congress, now we have relaxed MJ laws?  And does marijuana ‘decriminalization’ go far enough to put the federal government at the same level as the 35 US states who currently have passed medical marijuana (MMJ) laws?  

Below are our thoughts on what the incoming Biden administration will mean for marijuana in the US, at the federal level.  In all, it’s good news but we’ve got some things to consider …

Federal marijuana laws:  where are we now?

The federal government and marijuana have a very long relationship that goes back to 1937 when, off the heels of prohibition’s end, the federal government classified marijuana as a schedule 1 drug (the level above cocaine and opioids … yes, you read them correctly).  But for the sake of brevity, we’ll fast forward to the past few years to the MORE and Safe Banking acts:

  • The Safe Banking act would give marijuana-related business access to general business banking without federal repercussions.  In March 2020 the House passed the Safe Banking act as a part of the $3-trillion corona relief bill, but then-senate majority leader, Mitch McConnell, struck it out as a part of the partisan and cross-chamber negotiation.  
  • The Marijuana Opportunity Reinvestment and Expungement (MORE) act to reschedule MJ to level 2 and expunge convictions was passed by the House of Representatives in December 2020 but was also DOA at the senate when McConnell, wouldn’t give the act a reading (and therefore no vote).  

picture of courtroom javel with marijuana buds with american flag underneath

In all likelihood, the democratic majority congress will move these two pieces of legislation along.  But what MJ enthusiasts and activists will want to pay particular attention to, is what that actually will look like.  How the incoming government people feel about marijuana legislation might give insight.

Welcome democrats!  Now, what’s your position on MJ?

Everyone is very excited about the new administration and all the positive, progressive things that will be changing.  For the most part, the decision-makers and their influencers all have positive views on marijuana but some have particular details within that support that makes moving forward.  Here are some key figures …

  • Madame Vice President Kamala Harris – once an aggressive prosecutor, even with marijuana suspects, our Vice President has taken a near-180 turn in recent years in her support for full-out legalization.  As Biden’s running mate, though she’s toned down her speech and now supports decriminalization.
  • Attorney General, Merrick Garland, has a positive position on MJ so he will likely fall in-step with the anticipated reinstatement of the Obama DOJ memo.  But he thinks the Drug Enforcement Agency should be involved in research and legislative talks.  
  • Secretary of Commerce pick, Gina Raimondo, also has a positive position on decriminalization but believes MMJ should be sold through government-run stores.  Great, more government (bureaucratic) involvement …
  • Xavier Becerra, the nominee for Secretary of Health and Human Services has long supported the decriminalization of marijuana.  His appointment could be helpful:  apparently medical and scientific review from this department would have a very strong influence over the reclassification of the herb.
  • It’s unclear what position incoming Treasury Secretary, Janet Yellen, has on marijuana, but seeing marijuana business stock ‘surge’ and ‘soar’ after the senate turned blue must have caught her attention.  

Generally speaking, the new administration has a positive attitude on weed, but constituents (that’s you and me) must be mindful of much of what will be added or written into these possible laws.  If the government wants to be involved, what does this mean to how marijuana will be produced?  To what degree will it be regulated?  Will federally-legal marijuana be an attractive platform for lobbyists to latch on too?  Will MJ become another pawn in the battle for political power and money?  

Biden administration support:  decriminalization vs. legalization

Some activists argue that the current legislation likely on its way to the senate this month doesn’t go far enough.  Decriminalization, they say, isn’t enough – we need full legalization of marijuana.  Doing so will cover everything included in the MORE and Safe Banking acts, plus open up the opportunity for marijuana businesses to be included in any federal aid packages (very important in corona times).  Most importantly legalization will keep the actual production of marijuana legal, open, and provide additional tax revenue to the federal reserve.  

Keeping marijuana decriminalized may address MJ possession criminality and open the doors to medical availability, but it keeps the cultivation and production of MJ products in a very grey area:  not really legal, but not illegal either.  Anyone who’s been to Amsterdam knows this Dutch dichotomy:  you can possess weed in the Netherlands and coffee shops can sell it.  But legally speaking, grow operations and wholesale distribution is still illegal (though not enforced).  You might be thinking, ‘Retail legal, but production and wholesale illegal?  How does that work?’  Exactly.  Now you understand the juxtaposition of decriminalization vs. legalization.

person holding sign saying legalize marijuana

Where do we go from here?

Amazingly, marijuana – both ‘med’ and ‘rec’ – is one of the only issues, topics, or discussions that are bipartisan, meaning that both sides of the political spectrum seem to come together in support of it.  This is incredible, amazing, and oh-so validating!  But that also means that some democrats actually don’t support MJ, even medical.  They are few, but it’s still something to consider when ‘counting the votes’ when MJ legislature is brought through congress.   

But the bottom line is that the incoming administration is very medical marijuana-friendly, which at any level is a step in the right direction.  Just how they go about rolling out any MMJ-friendly laws should be carefully watched.  Government involvement usually means convoluted processes, more red tape, and even more opinion-fueled negotiations.  But even if the government was the smoothest running entity, it’s still another level of bureaucracy in the fight towards easy marijuana access for everyone.

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