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Biden's Marijuana Power Grab

If one drug can be arbitrarily eliminated from the systematic and scientific federal statutory structure, how can the whole structure stand?

New Yorkers Celebrate 4/20 Day In Washington Square Park
A Marijuana plant is displayed in Washington Square Park to celebrate 4/20, which is known as World Weed Day on April 20, 2022 in New York City. (Photo by Alexi Rosenfeld/Getty Images)

With student loan cancellation and, now, pardons for federal criminal convictions for simple possession of marijuana, President Biden has suddenly upped the ante in the midterm elections. With his novel commandeering of the constitutional pardon power and his political repudiation of the scientific basis under federal law for classifying drugs, he has dramatically augmented presidential power. What is more, Biden’s pardon, an unprecedented and unilateral executive decree, is a scaled-up version of what has happened across the country as local prosecutors (executive branch officials themselves) have decided on their own which drug laws to enforce.

Biden is taking a constitutional power designed for review of individual criminal cases into new territory. Under Article I, Sect. 2 of the Constitution, the president has “the Power to grant Reprieves and Pardons for Offenses against the United States, except in Case of Impeachment.” A reprieve is a reduction in sentence; it does not affect the underlying conviction. A pardon, as described by Hamilton in Federalist 74, is an act of “mercy of the government” and “mitigation of the rigor of the law” as an occasional “exception” to the normal severity. The power is exclusive to the president and cannot be overturned by any body of government, legislative, executive, or judicial. Every president of recent years has used the power to pardon individuals, often with controversy; President Ford’s pardon of Richard Nixon is the prime example.

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But, at significant turning points in American history, presidential pardons have been offered to certain groups. President Andrew Johnson pardoned soldiers of the Confederacy who agreed to pledge allegiance to the federal government after the Civil War. President Jimmy Carter pardoned all Vietnam War draft dodgers on his first day of office in 1977. But even that was a wrapping up of the remnants of a major historical event from which the country had largely moved on. Until now, the power has not been used to inaugurate national policy. The Biden marijuana initiative, with its clear implications of more to come and which includes the “urging” of state governors to do the same, is new.

Despite the changes in many state laws over the last five years and the massive public advocacy and lobbying of the multi-billion-dollar marijuana colossus, together with support in popular polling and the roaring approval and advocacy of the national media, today only a minority of the states—nineteen—have legalized regular and daily (i.e. “recreational”) marijuana use. And there are still thirteen states that have not even legalized so-called “medical” marijuana.

Biden is ordering a “review” of the classification and description of marijuana under federal drug laws and schedules. He explicitly criticized the classifying of marijuana in the same schedule as those “most dangerous substances,” heroin, fentanyl, LSD, and meth. Dr. Rahul Gupta, the head of the White House Office of National Drug Control Policy simultaneously released his own statement saying that marijuana policy needs to be based on a “a new approach” that “balances science with criminal justice reform efforts.”

The federal Food, Drug, and Cosmetic Act, administered by the Food and Drug Administration, requires all drugs to be shown “safe and effective” before being marketed in the United States. Drugs are placed on or removed from one of the five “schedules” of controlled substances according to a joint decision of the Justice Department (which includes the Drug Enforcement Administration) and Department of Health and Human Services (which includes the Food and Drug Administration) based on “scientific and medical evaluation.”

Marijuana, a “hallucinogenic substance,” has always been on the most dangerous drug listing, Schedule I, not only because of its “high potential for abuse” and because it has “no currently accepted medical use,” but also because of its “lack of accepted safety” for “use of the drug” even “under medical supervision.” Heroin and LSD are also listed under Schedule I. Other drugs, including opium, cocaine, and fentanyl, which have the same “high potential for abuse,” are in Schedule II because certain compounds of those drugs have medical uses—but “with severe restrictions.”

The marijuana legalization bill passed by the Democratic House last year includes a provision that completely removes marijuana from the federal drug schedules. In Section 3, “Decriminalization of Cannabis,” H.R. 3617 simply orders that marijuana and its additive element, THC, “shall be deemed”—i.e. not re-evaluated based on evidence—“to be a drug or other substance that does not meet the requirements for inclusion in any schedule.” So much for science. Legislative “deeming” replaces it.

Will there be anything left—after changing law, practice, science, and medicine by executive and legislative deeming—of the federal schedules of controlled substances and the FDA’s regulations of prescription drugs? If one drug can be arbitrarily eliminated from the systematic and scientific federal statutory structure, how can the whole structure stand? There are five drug schedules, varying from “high,” which includes marijuana, to “low...potential for abuse.” With the Biden precedent and the additional federal and state initiatives that it will launch, can manufacturers of drugs that are less harmful than marijuana sue for marijuana-like exemptions for their products? 

And if the current legal status of marijuana, currently based on science, is “reviewed” (Biden) and “balanced” (Dr. Gupta) with the consequence that marijuana’s legal status is completely changed, why should there not be an additional comprehensive pardon of marijuana-trafficking convictions? And what about pardoning convictions for simple possession of those Schedule II drugs opium, cocaine, and fentanyl?

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