President Joe Biden can grant a mass amnesty to people who have violated federal marijuana laws, congressional researchers said in a new report, adding that his administration could also move to federalize cannabis without waiting for lawmakers to act.
A new analysis published by the Congressional Research Service (CRS) on Tuesday examines the question: “Does the president have the power to legalize marijuana?” It’s an idea that has been raised repeatedly in recent years, including after Senator Bernie Sanders (I-VT) I pledged to take executive measures to end the ban On the first day at the White House during his 2020 presidential campaign.
While CRS has found that the president cannot in fact cancel the scheduling of cannabis unilaterally by executive order, “The CEO may order Agencies should consider either changing marijuana scheduling or changing its enforcement approach.” This involves federal officials beginning a process to completely remove cannabis from the Controlled Substances Act (CSA) without requiring any additional action from Congress.
Moreover, the president can also use his pardon powers either individually or broadly, to grant pardons to people facing charges for federal marijuana crimes, the CRS found. This blanket amnesty could even apply to people who have committed a federal cannabis crime, but have not yet been charged.
The new analysis from the Congressional Research arm is welcome news for advocates who have been pressing Biden to exercise executive authority to provide relief to people who have been incriminated for cannabis use, as he previously pledged during the presidential campaign.
“This new report confirms what advocates have long called for when it comes to consequential decisive action to end the harsh and draconian policy of criminalizing marijuana,” NORML Political Director Justin Strickall told Marijuana Moment. “If the Biden administration wishes to align itself with the political, economic, and ethical realities surrounding cannabis policy, it must take action urgently.”
When it comes to federal legislation, “Congress or the executive branch has the power to reschedule or deschedule marijuana under the CSA,” the CRS report states. However, while there is no dispute that Congress has this ability, and the administration can take action to reclassify cannabis from Schedule I to a different category, some analysts have questioned whether the executive branch could deschedule the drug entirely under current laws.
The attorney general can initiate a process to pay for marijuana rescheduling under the CSA by requesting a scientific review directly to the U.S. Department of Health and Human Services (HHS). Under HHS, the Food and Drug Administration (FDA) will evaluate the scientific, medical, and public health implications before submitting that review to the Department of Justice.
The HHS secretary or a third party can also petition for rescheduling, which will then be reviewed by the attorney general, who usually delegates this responsibility to the Drug Enforcement Administration (DEA).
However, the executive branch in the event of full scheduling is another matter. Attorney General Merrick Garland recently received a request from Senators Elizabeth Warren (Vice President, Massachusetts) and Cory Booker (D-NJ). To start the unscheduling processHowever, a close reading of the relevant law raises questions about whether it can actually achieve this legally.
Federal law states that if international treaties to which the United States is a party require control of any particular substance, the Attorney General will “order the control of such drug according to the schedule he deems most appropriate to carry out such obligations, notwithstanding” a separate HHS review.
Federal agencies such as the Drug Enforcement Administration in the past have cited international treaty obligations as a reason they have not been able to decriminalize marijuana domestically.
However, it is also the case that the state has previously violated such an international consensus in other contexts such as military engagement. But to the extent permitted by US federal law, one interpretation would be that the attorney general could be limited to moving marijuana to the lowest enforcement class under the World Food Security Act and could not cancel its scheduling entirely on his own.
CR Report Do not burden yourself with the complexities of international treaties and the relevant federal laws involved in them. Author Marijuana Moment drew attention to an earlier CRS report on the broader international ramifications of drug scheduling that did not appear to directly address the part of the US code that some analysts say could prevent executive scheduling from being de-scheduled.
Besides questioning the administration’s broader powers, Biden himself as president is unable to unilaterally scrap the marijuana schedule, Catholic Relief Agency reported. While some like Sanders have suggested this is something the president can do through an executive order, legal experts say it’s not that simple.
“The CSA does not provide a direct role for the president in classifying controlled substances, nor does Article II of the Constitution grant the president’s authority in this area (the Federal Controlled Substances Act is an exercise of congressional power to regulate interstate commerce),” the report states. “So, it doesn’t appear that the president can directly deschedule or reschedule marijuana with an executive order.”
However, while the president is limited in what he can do about existing federal laws, the report notes that he “has great control over how the law is enforced.”
For example, the Constitution gives the president the power to “grant pardons and pardons for crimes against the United States.” The report adds that clemency power extends to all federal crimes, “except for impeachment.” “The president may grant pardons at any time after a crime has been committed,” the report adds. : before a pardon recipient is charged with a crime, after a charge but before a conviction, or after a conviction. The power is not limited to pardoning individual offenders: the president may also issue a general pardon to a class of people.”
As lawmakers in Congress push for comprehensive legislative enactment, this is an alternative approach that advocates want Biden to take in the meantime.
A group of over 150 celebrities, athletes, politicians, law enforcement professionals and academics Sign a letter delivered to Biden In September, he urged him to issue a “full, full, and unconditional pardon” for all people with nonviolent federal convictions in marijuana.
That message came at a time when the administration started encouraging 1,000 people temporarily placed in home confinement for federal drug offenses To fill out clemency application forms.
Early in his administration, Biden received a letter from 37 members of Congress Invite him to use executive power A mass pardon for all people with nonviolent federal convictions of marijuana.
Asking for this unique form of presidential clemency is inspired by the actions taken by Presidents Gerald Ford and Jimmy Carter in the 1970s to flatly tolerate Americans who avoided conscription in the Vietnam War.
The CRS said in the new report that “it appears that the president can provide amnesty for some or all of the federal offenses related to past marijuana without making any changes to the CSA. However, such an exercise of the power of pardon may not address all of the potential legal collateral consequences of marijuana-related activities,” Because some of these consequences do not depend on a person accused or convicted of a CSA violation.”
“Mercy will not prevent the prosecution of future crimes if the president himself or the future administration ends the pardon policy,” the report said. “Furthermore, the power of presidential clemency extends only to federal crimes; it does not affect crimes under state law.”
Another option at Biden’s disposal is to “direct the Department of Justice (DOJ) to exercise its discretion not to prosecute some or all marijuana-related crimes.”
Catholic Relief Agency said, “Although the Department of Justice generally enjoys significant autonomy, particularly in its handling of specific issues, the President has the authority to direct the Department of Justice as part of his constitutional duty to ‘ensure that laws are faithfully executed.’” primarily about prosecuting criminal violations of the state security law and has significant prosecutorial discretion in doing so.”
It has exercised this discretion under the Obama administration by issuing directives to federal prosecutors that set federal enforcement priorities for marijuana-related crimes. However, this directive was repealed under the Trump administration’s first attorney general, Jeff Sessions.
The CRS report also provides an analysis of the broader powers Congress has when it comes to controlled substances.
“If Congress wishes to remove or reduce federal legal restrictions on marijuana beyond what the executive branch chooses, it has significant power to do so,” she said. “Although the CSA does not give the president the power to change the status of controlled substances or penalties for controlled substance offenses, Congress undoubtedly has the power to amend the CSA to reschedule a controlled substance, cancel its scheduling, or change applicable penalties.”
In both the House and Senate, efforts are underway to use these powers to end marijuana bans.
The CRS also said that “while Congress cannot directly change state laws, it may be able to bypass state laws through safeguards or enact measures designed to encourage states to change their own laws.”