What does Biden’s legal professional normal consider legalization? Not a lot – nevertheless it may not matter


After the Democrats took control of the U.S. Senate in the historic Georgia runoff last night, President-elect Joe Biden wasted no time this morning in announcing the news that the U.S. Appeals Court Judge Merrick Garland was voting for the US attorney general will be.

Merrick Garland as Attorney General: Good or Bad for Cannabis?

If that name sounds familiar, it is most likely that Garland was President Obama’s election to fill a vacant Supreme Court seat in 2016.

As is known, Garland never received a confirmation hearing as then Senate majority leader Mitch McConnell blocked his nomination until the end of Obama’s term. The vacant space was finally occupied by Trump nominee Neil Gorsuch in 2017.


Obama’s Supreme Court Election: The One Thing We Know About Merrick Garland and Cannabis

But now McConnell’s days as the majority leader seem numbered – if Georgia’s return occurs – and new President Biden appears poised to tap Garland to serve as the country’s top law enforcement officer. If this were affirmed – presumably a formality in a Senate expected to be controlled by Democrats – Garland would take responsibility for shaping federal cannabis policy, at least when it comes to enforcement, at a time in that the nation is at a crossroads. About half of the country now lives under legalization and the other half under prohibition.

Support for nationwide legalization has never been so high. The latest polls by Pew and Gallup consistently show that more than two-thirds of Americans support legalizing marijuana for all adults.

With the Democrats now holding majorities in both Houses of Congress, the passage of the MORE bill moves from distant hope to actual possibility.

President-elect Biden, at least officially, remains opposed to legalization – making him an outlier among Democrats – although it is unclear whether he would veto the popular law passed by his own party.

Legalization isn’t really on his radar

So where is the alleged attorney general?

During his career as a judge and federal attorney, Merrick Garland had very little to say about cannabis.

In a 2012 case, Garland was on the DEA’s side in marijuana planning. But that was before state legalization of adult use was even a thing.

His most direct comments on the matter were made in 2012 during a federal hearing on cannabis planning. In that hearing, cannabis advocates attempted to question the federal government’s classification of cannabis as a List 1 drug – the most restrictive category reserved for “substance abuse” with no proven medical value.

Joe Elford, an attorney for medical cannabis advocacy, Americans for Safe Access, appeared before Merrick Garland, arguing that the federal government “failed” to weigh the evidence in considering the medicinal value of the plant and that the DEA’s “bias” was against cannabis only The federal government was able to conclude that marijuana is just as harmful as heroin and PCP, and even more harmful than methamphetamine, cocaine and opium.

At one point in the proceedings, Garland asked a question that appeared to give the DEA the benefit of the doubt, as reported by the LA Times at the time.

“Don’t we have to rely on their judgment,” what the medical studies show? asked Judge Merrick Garland. “We are not scientists. You are.”

Ultimately, the three-judge panel dismissed petitioners’ contestation of the DEA and ended one of the many attempts in the past few decades to use federal courts to challenge the design of cannabis in the 1970 Controlled Substances Act.

Garland did not write the decision, but he decided by a majority that the DEA’s planning of cannabis is not “arbitrary and capricious” because the DEA regulations define “currently accepted medical use” to mean, among other things, “appropriate and “To call for well-controlled studies prove its effectiveness. ‘”

Eight years was a lifetime in cannabis years

Before we draw strong conclusions about Garland’s approach to cannabis, however, it is important to note that it is a single, perhaps rhetorical, question that was asked eight years ago.

When it comes to cannabis, it’s practically an old story. Garland heard the 2012 case ahead of the November 2012 election when Colorado and Washington shocked the political world by voting in favor of legalizing adult marijuana use.

Is the Attorney General even important now?

More importantly, as the nation moves from prohibition to legalization as the predominant approach to cannabis, the role of law enforcement in general, and the attorney general in particular, continues to decline.

Jeff Sessions stepped in as an attorney general who hates marijuana. He did almost nothing to stop the growth of legalization.

When President Trump took office in 2017 and named long-time cannabis enemy Jeff Sessions as his attorney general, the cannabis industry and community reacted with horror. In fact, Sessions spent much of his time in office speaking out against legalizing marijuana.

While the Trump administration generally remained hostile to reform, there was never any feared federal government crackdown on state-licensed cannabis companies. The sessions overturned the Cole Memo, the Obama-era policy statement that provided guidance to states that had chosen to legalize and regulate marijuana. But that seemed to have little real effect.

The most egregious measures were taken by Sessions successor William Barr, who opened a series of unjustified harassment investigations against legal cannabis companies on antitrust grounds.

Previously, under President Obama, U.S. attorneys (operating under the authority of the Attorney General) led individual raids and other enforcement actions against rule of law cannabis companies as the industry grew and legalization expanded.

Power is now in the Senate

From here it is hard to imagine that the Attorney General and the Justice Department under a Democratic President with a Democratic Congress proactively prosecute either individual government-approved consumers, corporations, or state officials who authorize the legal, regulated use of medical cannabis or adult cannabis.

Indeed, the prospect of de-escalating the federal war on marijuana that has been waged since the Washington, DC, 1937 Marijuana Tax Act was passed is far more interesting.

In the coming days and weeks, Merrick Garland will no doubt be pushed to weigh federal legalization, among other things. In the meantime, however, the real action could lie with the Senate, which at its next session could consider a version of federal legalization – the MORE Act – which the House passed by a wide margin late last year.

David beehive

Veteran cannabis journalist David Bienenstock is the author of How to Smoke Pot (Right): A High-profile Guide to Getting High “(2016 – Penguin / Random House) and co-host and co-creator of the podcast” Great Moments in “Weed Story With Abdullah and Bean. “Follow him on Twitter @pot_handbook.

View David Beehive’s articles

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Beth Edmonds