Thursday marks the end of President Joe Biden’s first year in office—and, by and large, his campaign promises on marijuana policy have so far gone unfilled. And while certain federal agencies have taken some positive reform steps, the administration managed to stir controversy over some outwardly hostile actions with respect to cannabis policy.
Contrary to Biden’s campaign pledges, cannabis has not been federally decriminalized, people remain in federal prison over non-violent marijuana offenses and the plant has yet to be rescheduled under the Controlled Substances Act. Of the cannabis promises that Biden made while running for president, just one has been met so far: the government has continued to let states implement marijuana reform mostly without federal intervention, though ongoing lack of clarity from the administration has caused continuing complications for the industry and consumers.
In one of the more notable positive developments to come out of the Oval Office, however, Biden did sign an infrastructure bill last year that contains language meant to help promote marijuana research.
While there were
numerous successes on the reform front in 2021 those mostly came at the state level, and advocates feel disappointed by the overall White House inaction—especially considering that it was promised to voters ahead of the 2020 election.
It’s not just that there were no meaningful reform actions in Biden’s first year, either. It’s that some of the few actions he did take on marijuana—proposing in his budget to keep blocking Washington, D.C. from legalizing cannabis sales and punishing White House staff who were honest about past marijuana use—were setbacks in the movement.
Biden himself hasn’t made a substantive public comment about cannabis policy since entering the Oval Office, beside making a quick, dismissive comment to a reporter who asked about clemency for current prisoners. Vice President Kamala Harris, for her part, said last year that the Biden administration isn’t focused on
following through on its marijuana reform pledges because it’s too overwhelmed with responding to the coronavirus pandemic.
“The Biden Administration’s failure to live up to campaign statements and, in the case of including a rider preventing D.C. from regulating cannabis in his budget proposal, even backsliding on cannabis is extremely disappointing,” Morgan Fox, the
newly installed political director of NORML, told Marijuana Moment. “This inaction on modest cannabis policy reforms over the past year is inexcusable and is a betrayal of the people that put the president in office.”
“The president has an opportunity with cannabis to show initiative and leadership on an issue that enjoys broad bipartisan support,” he said. “Continued inaction on this issue will have negative consequences for his party this year and in 2024.”
Here’s a rundown of what has happened with marijuana and broader drug policy under the Biden administration in its first year:
Promise Made, Promises Not Kept
When he was running for president, Biden frustrated advocates by declining to embrace broad marijuana legalization like most of his Democratic primary opponents did at the time. But they were at least encouraged that he voiced support for more modest reforms like federal decriminalization, legalizing medical cannabis, rescheduling and expungements.
“We should decriminalize marijuana,”
he said during a town hall event in October 2020, adding, “I don’t believe anybody should be going to jail for drug use.”
He reiterated the pledge in numerous interviews, debates and tweets, as well as in a campaign ad.
But despite having the authority to unilaterally issue a mass pardon for people with federal cannabis convictions—as advocates and lawmakers have repeatedly pressed him to do—
Biden has only ceremonially pardoned turkeys around Thanksgiving since taking office.
Following that ceremony, The New York Post’s Steven Nelson pressed the president on cannabis clemency, asking him if there were plans to pardon “any people in addition to turkeys.” Biden jokingly replied, “you need a pardon?” and didn’t respond to a follow-up question about marijuana prisoners.
The White House has been asked about the issue several times now, but while Press Secretary Jen Psaki recently said that the president has “every intention of using his clemency power” and is “looking at” relief for non-violent drug offenders, no meaningful action has been taken.
While on the campaign trail, Biden also came out in favor of moving marijuana from Schedule I to II under the federal Controlled Substances Act—an incremental move that wouldn’t legalize the plant but could make it easier for researchers to study its risks and benefits.
Psaki said in April that Biden’s clemency promise for people with federal marijuana convictions and said that process
would start with modestly rescheduling cannabis. But even if rescheduling could help people with cannabis records (experts say it would not), the administration has so far taken no real steps to accomplish that reform.
While experts say it may not be possible for a president to unilaterally remove cannabis from the Controlled Substances Act, he could encourage agencies like the U.S. Department of Health and Human Services (HHS) and Justice Department
to initiate the rescheduling process.
The lack of clemency action is especially disappointing to advocates who have been lobbying the White House to do something on this issue.
Biden has received about a dozen
letters from lawmakers,
advocates, celebrities and people impacted by criminalization to
do something about the people who remain behind federal bars over cannabis. After months of inaction, some members of Congress like
Sen. Elizabeth Warren (D-MA) have even
sent follow-up letters demanding a response.
A recently published Congressional Research Service (CRS) report affirmed that the president has it within his power to
grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.
To his credit, Biden has so far kept his campaign pledge to continue to let states legalize and regulate marijuana without federal intervention. But advocates had hoped that he would at least push for the reinstatement of Obama-era Justice Department guidance to prosecutors that generally urged them not to interfere with state laws but which President Donald Trump’s first attorney general rescinded.
Without that guidance or any other concrete reform steps, banking challenges and risks remain in the cannabis industry, marijuana businesses are unable to receive tax credits like other legal industries and other hardships resulting from the federal-state policy conflict remain intact for consumers and patients. In effect, Biden has maintained the status quo of uncertainty that has been in place during the Trump administration and last half of the Obama administration.
Reform Setbacks
Early in 2021, the Biden administration came under fire after it was reported that it had
terminated or otherwise punished dozens of staffers who admitted to prior marijuana use as part of their background check process.
Psaki previously
attempted to minimize the fallout, without much success, and
her office also stressed that nobody was fired for “marijuana usage from years ago,” nor has anyone been terminated “due to casual or infrequent use during the prior 12 months.” However, she’s consistently declined to speak to the extent to which staff have been suspended or placed in a remote work program because they were honest about their history with marijuana on the federal background check form.
As part of his fiscal year 2022 budget proposal, Biden included a rider that would continue to block Washington, D.C. from using its own tax dollars to legalize adult-use marijuana sales, declining to recommend that existing language barring such activity be eliminated. Democratic lawmakers have moved forward with removing that rider anyways
After receiving a letter from a congresswoman concerning executive discretion for cannabis consumers, the U.S. Department of Housing and Urban Development (HUD) said it is required to
continue denying federally assisted housing to people who use marijuana, even if they’re acting in compliance with state law.
The federal government has generally taken a hands-off approach to marijuana enforcement in states that have chosen to legalize the plant, but it was reported late last year that a federal agency
raided a small, home cannabis garden of a medical cannabis patient living on Indian territory in New Mexico. The Bureau of Indian Affairs (BIA) raid occurred in September.
Biden’s Department of Veterans Affairs (VA) said last year that it continues to oppose a bill that would require it to conduct clinical trials
into the therapeutic potential of marijuana for military veterans. A House committee
advanced the legislation in any case. A VA representative told lawmakers that the department is “already dedicating resources and research expertise to study the effects of cannabis on conditions affecting veterans.”
“President Biden has made little progress in supporting drug reform laws at the federal level and in some instances, has even taken us further back,” Maritza Perez, director of national affairs at the Drug Policy Alliance, told Marijuana Moment.
On broader drug issues, she added that the administration backed a broad scheduling policy for fentanyl-related substances that “will have a devastating impact on the criminal legal system and set a horrific precedent for drug scheduling moving forward.”
“Moreover, President Biden has failed to embrace marijuana legalization even though he claims to support decriminalization of the substance,” Perez said. “As long as marijuana remains on the CSA, people will continue to be policed, arrested, and imprisoned for marijuana activity. This is deeply problematic particularly because this president made bold promises around criminal justice reform and racial justice for which he has not delivered.”
Federal Actions On Marijuana
There were some positive developments in drug policy reform that came out of federal agencies and the White House last year.
Biden signed a massive infrastructure bill in November that includes provisions aimed at allowing researchers to
study the actual marijuana that consumers are purchasing from state-legal dispensaries instead of having to use only government-grown cannabis. The legislation also encourages states that have enacted legalization laws to educate people about impaired driving.
In his 2022 budget, Biden proposed continuing a spending bill provision that’s been annually renewed by Congress since 2014 to prevent the use of Justice Department funds to interfere in state medical cannabis programs. That was the first time a president has moved to keep that rider.
The Drug Enforcement Administration (DEA) under Biden has also moved on several occasions to
greatly increase legal production quotas for illegal Schedule I drugs like psilocybin, MDMA and DMT.
And several years after first announcing that it would take steps to break the federal marijuana manufacturing monopoly for research,
it has finally issued new licenses outside of the University of Mississippi.
Meanwhile, DEA has given hemp businesses that sell delta-8 THC products a boost, with representatives making comments recently signaling that, at the federal level at least,
it’s not a controlled substance at this time.
Employment policies related to marijuana have also been shifting within federal agencies under Biden, despite the controversy of his administration’s cannabis-related firings.
The Office of Personnel Management (OPM) said in a memo distributed to agencies last year that admitting to past marijuana use
should not automatically disqualify people from being employed in the federal government.
More recently, the director of national intelligence (DNI) said
federal employers shouldn’t outright reject security clearance applicants over past use and should use discretion when it comes to those with cannabis investments in their stock portfolios.
FBI
quietly updated its hiring policies last year to make it so candidates are only automatically disqualified from joining the agency if they admit to having used marijuana within one year of applying. However, it
later revised the policy again to add a stipulation that applicants are ineligible if they’ve used cannabis more than 24 times after turning 18.
In September, The White House Office of National Drug Control Policy (ONDCP) proposed
a change to the federal drug scheduling system that it hopes will streamline research into Schedule I controlled substances including marijuana and psychedelics such as psilocybin. DEA and NIDA
later said that they supports the plan.
While the Biden administration has yet to take a position on policy proposals to authorize safe consumption facilities and a related court challenge against them that are carried over from the Trump administration, the National Institutes of Health (NIH) put out a pair of requests for applications last month for an effort that will provide funding for efforts to investigate how that and other harm reduction policies
could help address the drug crisis.
After
requesting permission from the White House to
conduct the survey of about 20,000 hemp farmers, The U.S.Department of Agriculture’s (USDA) National Agricultural Statistics Service announced in August that the forms are being finalized to be filled out via mail or online.
The Food and Drug Administration (FDA), meanwhile, still hasn’t gotten around to issuing regulations for hemp-derived cannabidiol products, but it announced last year that it plans to use Reddit and other “novel” data sources to gain a better understanding of
public health issues surrounding use of CBD and other “emerging” cannabis derivatives like delta-8 THC.
Federal, state and local officials
convened for a national conference this month where members discussed and advanced proposals to establish standards for marijuana products that could later be formally adopted into a federal handbook overseen by the National Institute of Standards and Technology (NIST).
While Biden hasn’t granted mass clemency for people with marijuana convictions, his administration did take a first step toward
granting presidential relief to hundreds of people on home confinement for federal drug convictions last year, with the Federal Bureau of Prisons (BOP) asking eligible individuals to get the process started by filing out clemency applications.
Biden Nominees On Drug Policy
Several of Biden’s pick to lead key agencies have unique drug policy backgrounds. And some of those choices who’ve since been confirmed have been applauded by advocates.
Activists initially weren’t sure what to make of Attorney General Merrick Garland when he was nominated because of his limited record, but they were relieved during his confirmation proceedings to hear that he wasn’t preparing a crackdown on legal cannabis states.
While he’s yet to reinstitute the Obama era guidance offering some level of protection for states that have legalized, he has said on several occasions that DOJ resources shouldn’t be spent
going after people operating in compliance with state cannabis laws.
He also hasn’t acted on calls from lawmakers to use his own authority to
swiftly end federal cannabis prohibition.
ONDCP Director Rahul Gupta worked as a consultant to Holistic Industries, a multi-state cannabis operator, for nine months in 2020. Prior to his confirmation, Gupta had already caught the attention of reform advocates given his record overseeing the
implementation of West Virginia’s medical marijuana program as state health commissioner and chair of a key advisory board. He’s also publicly recognized both the therapeutic and economic potential of cannabis reform.
It was another relief to advocates that the president didn’t pick former Rep. Patrick Kennedy (D-RI), a cofounder of anti-legalization organization Smart Approaches To Marijuana (SAM), for the drug czar job, even after
he personally lobbied for the nomination.
Associate Attorney General Vanita Gupta (no relation to Rahul) was also repeatedly pressed on her drug policy views during her confirmation process, particularly where she stands on broad decriminalization. Advocates expressed frustration that
she denied having endorsed decriminalization during the hearings despite having done so in past roles at reform organizations.
Former California Attorney General Xavier Becerra was picked to lead HHS, and it was welcome news for advocates because he has a
considerable record supporting cannabis reform and working to protect California’s legal program from federal interference.
For example, Becerra was one of 21 state attorneys general who sent a letter to congressional leaders in 2019
expressing support for a bipartisan bill to protect state-legal cannabis programs against federal intervention.
In October, Becerra also signaled that the administration
would not block the establishment safe injection sites where people could use illicit drugs in a medically supervised environment as a means of curtailing the overdose epidemic—but it will ultimately be up to the Justice Department to follow through.
As California’s attorney general, Becerra joined counterparts from other states in signing onto an amicus brief supporting a group’s case to set up a harm reduction center. After making supportive remarks about the facilities as HHS secretary, however, a department spokesperson clarified that “HHS does not have a position on supervised consumption sites.”
Biden’s nominee for FDA commissioner has
acknowledged the potential medical benefits of marijuana. Robert Califf, who previously served a short stint as the FDA head under the Obama administration, also said that he actually prescribed a cannabinoid drug as a doctor. He’s yet to be confirmed, however.
Tom Vilsack, Biden’s nominee to run USDA who has since been confirmed, gave final approval to a federal rule
laying out regulations for the hemp industry in March 2021. He’s widely considered an ally of the hemp industry.
The head of DEA who Biden selected previously described a New Jersey medical marijuana bill as “workable” while serving at the state’s attorney general. Although the former top state prosecutor, Anne Milgram, doesn’t appear to have publicly detailed her personal views on cannabis reform, the limited comments she made over a decade ago signal that, at the very least, she’s open to
allowing states to enact their own marijuana policies despite federal prohibition.
Treasury Secretary Janet Yellen recently said that that freeing up banks to
work with state-legal marijuana businesses would “of course” make the Internal Revenue Service’s (IRS) job of collecting taxes easier. Rep. Ed Perlmutter (D-CO) said this month that he’s confident that Biden would support his cannabis banking bill if it arrived on his desk in part because of the
conversations he’s had with Yellen about the issue.
Adewale Adeyemo, who Biden picked for the role of Treasury deputy secretary, said in February 2021 that he would
look into the possibility of updating 2014 Financial Crimes Enforcement Network (FinCEN) guidance on marijuana banking.
Isabel Guzman, who was picked and confirmed to lead the federal Small Business Administration (SBA), told senators last year that she would examine
marijuana businesses’ inability to receive aid that is available to companies in other industries. She also promised last year to
“explore” ways the agency could change its policy on prohibiting people with certain criminal convictions—including over marijuana—from accessing federal business loans and other services.
It’s also worth noting that the head of the National Institute on Drug Abuse (NIDA), Nora Volkow, has repeatedly made comments on
the need for a drug decriminalization model while Biden has been in office, though her tenure predates this presidency.
What To Expect From Biden In 2022
Advocates aren’t necessarily holding their breath for a 2022 marijuana reform push from the White House, but they certainly plan to continue to put pressure on the Biden administration in the new year and see opportunities for at least incremental reform.
With respect to federal agencies and their various heads, it seems the infrastructure is in place to continue to advance incremental policy changes that are less punitive and more science-centered with respect to cannabis, psychedelics and broader drug reform.
Toi Hutchinson, former senior advisor on cannabis to Illinois Gov. J.B. Pritzker (D) and
current CEO and president of the Marijuana Policy Project, told Marijuana Moment that it is unfortunate that states have so far lacked “guidance or participation from the federal government” on the cannabis reform front.
“States are left to develop and impose their own testing, health and safety rules. Banks are afraid of violating criminal law by serving licensed operators,” she said. “Individuals in one state compete for state licenses to produce and sell cannabis on an industrial scale, where they face arrest, prosecution, and jail in a neighboring state to even possess a single gram of the same substance.”
“Democrats, including President Biden when he was on the campaign trail, have been clear in their support for cannabis reform, and voters listened,” she said. “Whether it’s full legalization in 2022, or simply the ability for cannabis businesses to get a bank or get tax relief, we expect to see cannabis reform because that is exactly what we were told.”
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