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Could President Joe Biden Legalize Marijuana? Not Really—And The Marijuana Industry Doesn’t Want Him To Try.

california marijuana for sale online.Fram this way, the answer is almost certainly no. President Joe Biden will not legalize marijuana, sorry! And that is exactly what the marijuana industry wants to hear. The legalization-by-fiat options available to any American president would create more problems than it would solve.

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Scenes like this would not be legal if President Joe Biden rescheduled cannabis. GETTY IMAGES

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First, legal scholars seem to mostly agree that

the president can use the power of the executive

branch to reschedule cannabis.

 The Controlled Substances Act currently classifies marijuana 

as a Schedule I drug—more addictive than

heroin! Less medical value than cocaine!

No medical value, a high potential for abuse,

and illegal in all circumstances. (You will notice

this hasn’t stopped states from legalizing

cannabis, nor has it stopped recreational

marijuana from growing into a

multi-billion-dollar industry.)

As Sam Kamin, the Vicente Sederberg Professor

of Marijuana Law and Policy at the University

of Denver’s Sturm College of Law,

 wrote in a 2016 article, the president can

unilaterally reschedule cannabis, but the president

cannot deschedule.

What’s that mean? Since the Drug Enforcement

Administration is part of the U.S. Department

of Justice—and part of the executive branch—the

president can instruct the attorney general to

reclassify cannabis, into a different category

of control substances.

Moving cannabis to Schedule III or Schedule IV

would solve at least one of the marijuana

industry’s problems. IRS Section 280E forbids the

sellers of illegal drugs from claiming certain

business expenses on their taxes. This prohibition

has crippled some businesses and shrunk the

margins of almost everyone else.

But rescheduling alone would almost certainly not allow cannabis businesses to use banks. And particularly not if they continue to violate the Control Substances Act anyway, which is what all dispensaries in all states would be doing if President Biden rescheduled weed.

All drugs in the Control Substances Act that can be bought and sell are did so with DEA licenses, with doctor’s prescriptions. No recreational drug that is legal—tobacco, alcohol—are distributed in this way.

It’s generally understand, then,

that rescheduling weed would blow up the marijuana industry’s existing model, of state-license businesses that are not pharmacies selling cannabis products, that are not Food and Drug Administration-review and approve, to customers who are not medical patients.

Biden rescheduling cannabis “would only continue the state-federal conflict, and force both state regulators and businesses to completely reconfigure themselves, putting many people out of business and costing states significant time and money,” as Morgan Fox, chief spokesperson for the National Cannabis Industry Association, said in an email on Monday.

So what’s the difference between

rescheduling and descheduling, and why can’t the president do it? For the same reasons why the president can’t pass laws or a budget or make war (at least not forever!) without Congress. Rescheduling cannabis, and making other points of law by executive action, is not within the powers of the office.

california marijuana for sale online.

Descheduling is legalizing marijuana, for real: removing it from the federal government’s list of banned or controlled substances entirely. This would not prohibit the federal government from making laws restricting who can buy or sell the stuff, or in what quantity—a quick review of what the Bureau of Alcohol, Tobacco, and Firearms does is a good reminder of this!—but this is what’s understand as necessary for the cannabis industry’s dream situations: interstate trade, institutional investors, advertising. The works!

And the president cannot do this.

Cannabis prohibition has been challenge in the courts before. And while federal courts have given cannabis businesses some relief—a 2015 ruling in California, for example, affirmed that the federal government can’t shut down state-legal medical cannabis dispensaries—courts have also refused to address the scheduling issue.

Most recently, in October, the Supreme Court declined to hear an appeal in Washington vs. Barr, a petition challenging cannabis’s Schedule I classification that lower courts has also shot down. Advocates have taken this to mean that the courts believe rescheduling is Congress’s job.

“It is Congress that imposed the federal prohibition of marijuana and ultimately it is up to Congress to repeal this destructive and discriminatory policy,” as Keith Stroup, NORML’s legal counsel, said at the time.

There’s also the open question of whether President Biden would expend political capital, testing the power of his office—and the appetite of Sen. Majority Leader Mitch McConnell’s Senate to swallow it—by legalizing cannabis rather than addressing the COVID-19 pandemic or the novel coronavirus’s economic destruction.

california marijuana for sale online.

Legally questionable, politically impractical. No, Joe Biden won’t use the powers of the executive branch to legalize cannabis. He could encourage more research. He could issue pardons or commutations, and he could tell the Veterans Administration to ease up on restrictions creating problems for military veterans seeking cannabis. But to legalize, Congress must act.

And for now, it’s still a Congress control by some of the same lawmakers who have reliably block legalization. That may change, but it won’t be President Joe Biden who does it.Follow me on Twitter or LinkedIn

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