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Blog 丨 2021.09.07

Cannabis Reforms Under the Biden Presidency

States across the US are legalizing cannabis for recreational purposes. However, the topic of federal legalization casts a shadow over the cannabis industry in the country. Federal cannabis prohibition reduces the potential for market growth even in the states in which cannabis is legal. There has been increasing pressure on the federal government to legalize recreational cannabis use. States with legal cannabis have demonstrated the economic incentive for the federal government to end prohibition, while high public opinion in favor of legalization provides a political incentive. 

However, the election of Joe Biden as US president represented a mixed result for cannabis advocates. On the one hand, Biden is a member of the Democratic party, which tends to face more pressure for legalization. On the other hand, Biden holds the most moderate stance out of the candidates who ran to be the party’s 2020 presidential nominee. The potential for cannabis reform under the Biden presidency is balanced between Biden’s conservative stance and increasing pressure from the public and Congress to implement reforms. 

Biden: On the Other End of a Generational Split

Public opinion in favor of legalization is prevalent. 60% of Americans think that cannabis should be legal for recreational use, and only 10% believe that cannabis should not be legal for any purpose whatsoever (Van Green, 2021). One crucial element that explains this stark difference between public opinion and federal policy is the significant gap in opinion between age demographics on this issue. 

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President Joe Biden’s Stance on Cannabis is Out of Step with the General Public

This gap has implications for the Biden Administration stance on cannabis. Biden, a member of the “Silent Generation” born between 1925 and 1944, “belongs to an age cohort that is the most opposed to cannabis reform in the American electorate (Hudak, 2021).” This gap means that the Biden presidency has a significantly different attitude towards cannabis than the general public. 

The administration is strongly influenced by attitudes that are quickly becoming outdated. For example, Biden’s belief in the “gateway drug” theory may influence his decisions, even though this theory has been scientifically debunked (Hoban, 2021). However, mounting pressure from Congress means that federal cannabis reform remains a possibility under the Biden Administration. 

Vice President Harris Shifts Her Stance

Around a year and a half into the Biden Presidency, the administration has taken several steps that have worried cannabis legalization advocates. First, in March 2021, the administration fired several staffers for disclosing past cannabis use (Fernandez, 2021). These staffers were fired even though Vice President Kamala Harris has admitted to using cannabis in the past. Indeed, cannabis legalization advocates have been disappointed as Harris has shifted her public stance after the election. 

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Vice President Harris has Moderated her Stance on Cannabis Legalization    

Vice President Harris stated her support of federal cannabis legalization during the primaries. This stance led some advocates to hope that her views would influence the administration away from Biden’s conservative position. However, “The opposite seems to have happened, with Harris... walking back some of her more progressive statements on marijuana (Fernandez, 2021).” Despite the admitted history of the Vice President, the Biden Administration represents a unified front in opposition to cannabis legalization. 

Biden’s Budget Proposal: A Mixed Bag for Cannabis Advocates

A second sign of the administration’s cannabis policy is the budget proposal Biden submitted to Congress in May 2021. On the one hand, the budget proposal had some positive improvements over those submitted by previous presidents. For example, Biden was the first president to request protections for medical cannabis programs in his budget (Strekal, 2021). Protections for medical cannabis represent a shift away from the conservative mindset that denies the medical benefits of cannabis use

This shift from Biden is one sign that the momentum of cannabis legalization can cause even politicians with conservative views on the issue to take progressive steps. The protection of medical use represents the acknowledgement that cannabis has some essential benefits. At the same time, the protection of medical use helps the federal government form some of the regulatory structures that will help regulate recreational use if federal legalization happens. This budget item is one of the few steps taken by the Biden Administration that indicates an openness to progressive cannabis policy. 

However, other elements of the budget proposal were extremely concerning for cannabis advocates. In particular, the proposal places restrictions on Washington, DC, to set up a recreational cannabis market (Strekal, 2021). This move has implications for both the federal legalization of cannabis and the state-by-state legalization process.

First, this decision demonstrates the Biden Administration’s opposition to legalization at any level of government. Opposition to the development of legal cannabis markets at the sub-federal level indicates the administration will take a similar attitude towards federal policy. 

Second, the proposed policy could slow the push towards legalization occurring below the federal level. The development of legal recreational cannabis markets places pressure on the federal government to pursue legalization. The successful development of legal cannabis markets in individual states or jurisdictions such as DC provides evidence for legalization’s economic and political incentive. 

On the other hand, restrictions on the ability of sub-federal governments to respond to the pro-legalization will of the people lower the incentive for other jurisdictions to pursue their own legal cannabis market. Biden’s proposal to restrict DC’s ability to create a legal weed market could deter states from pursuing cannabis legalization. Fear that the federal government would respond by reducing access to federal funds could cause some states to hesitate to pass legislation that contradicts federal laws. Nonetheless, this deterrent is relatively insignificant compared to the momentum that has already been gained in legal states. Moreover, pressure is mounting in Congress within both parties that could force the Biden Administration to accept federal legalization, despite its generally conservative stance. 

The MORE Act and Bipartisan Cooperation

Developments in Congress are increasingly making some form of federal legalization seem more likely during the Biden Administration. Congressional Democrats have stated that cannabis law reform is a major priority for the party (Sheehey, 2021). As the party controls both houses of Congress, they have a significant amount of power to pass legislation to the desk of the President. However, passing cannabis reform is made substantially more difficult due to the potential of a Biden veto. 

The threat of a veto hangs over The Marijuana Opportunity, Reinvestment, and Expungement Act (or MORE Act), the democrats’ proposed cannabis reform legislation (Roberts, 2021). This legislation goes beyond the legalization of cannabis to address social justice issues surrounding prohibition. For example, the bill would divert funds to individuals who were incarcerated for cannabis offences. This type of progressive reform faces a low potential for cooperation between parties, as most Republicans strongly oppose these measures. 

However, more moderate proposals set forth by congressional Republicans could form the basis for a compromise that is acceptable to both parties and the Biden Administration. The Common Sense Cannabis Reform For Veterans, Small Businesses, and Medical Professionals Act would legalize the interstate trade of cannabis yet would not address any of the social justice issues discussed in the MORE act (Roberts, 2021). For this reason, the version of legalization proposed by Republicans may represent a viable path towards reform within Biden’s term in office. Suppose Democrats and Republicans in Congress can compromise on these social issues. In that case, there is a significant chance that there will be progress towards addressing the public’s desire for cannabis legalization. 

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Conclusion: The Unstoppable Momentum of Legalization

Despite President Biden’s opposition to cannabis legalization, pressure is mounting for federal cannabis reform. As a priority of Congress, the practical steps towards legalization are being negotiated each day. No previous presidential administration has faced such a concrete prospect of receiving a bill for federal cannabis legalization from Congress. At the same time, evidence of the economic and social benefits of cannabis legalization mounts in states with legal recreational use. Although the Biden Administration has taken some steps that provide some reason for pessimism among cannabis reform advocates, political pressure is rapidly approaching a tipping point. After decades of opposition to cannabis legalization at the federal level, a shift is occurring which will eventually change cannabis markets in the US forever.