Why the Hell Isn’t Biden Ending the Federal War on Cannabis?

Joe Biden and the Democrats are in deep trouble. The president’s approval ratings are in the sewer and all signs continue to indicate that his party will be pulverized this fall.

It’s not surprising. Biden enjoyed public support at the beginning of his presidency when he was actually doing things for the public (like economic stimulus and child tax credits). All of that’s a distant memory now. The president and his spokespeople barely even talk about the ambitious legislative proposals they introduced with so much fanfare in 2021. And gas and food keep getting more expensive.

Under these circumstances, you would think that the administration would be leaping for any action they could possibly take that lies in the overlap area of the Venn Diagram of (a) promises that Biden made during the 2020 campaign that (b) can be carried out by executive action (no need to get the often recalcitrant Democratic Sens. Joe Manchin or Kyrsten Sinema on board), and crucially (c), are extremely popular.

And yet.

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Descheduling cannabis from Schedule I—the DEA’s classification for drugs with the highest risk of abuse and no medical benefits—and pardoning every federal prisoner serving time for non-violent weed offenses would check all three boxes. Amazingly, Biden hasn’t done it.

Promises, Promises

In a campaign ad that hit YouTube seven days before the 2020 election, Biden said, “As president, I’ll work to reform the criminal justice system, improve community policing, decriminalize marijuana, and automatically expunge all prior marijuana convictions.”

He didn’t leave himself a lot of wiggle room there. And while those first two elements could have legislative components for which the standard excuses would apply—Manchin! Sinema! The Republicans! The parliamentarian!—no one doubts that the last two could be done by Biden alone. Any day that he decided to swing into action on this, it wouldn’t even have to take up his whole afternoon.

And yet.

When then-White House Press Secretary Jen Psaki was asked about this in a press briefing on (ahem) April 20, the best she could say was that Biden was “continuing to review his clemency powers.” Oh, and did she mention that the DEA expanded the list of authorized manufacturers of cannabis for research purposes? Don’t forget that part!

Not only has no one had their criminal record expunged but Daniel Muessig, for example, just started a five-year sentence in federal prison for non-violent marijuana offenses. Biden promised that he would release everyone in his situation, but Daniel’s wife, parents, and all the other people who love him won’t get to see him for five years. Morally, that’s outrageous. Politically, it’s jaw-droppingly stupid.

According to a Gallup poll last fall, 68 percent of Americans said that they wanted to go beyond Biden’s promise. They want full federal legalization of the recreational use of marijuana by adults. The kinds of big dramatic steps in that direction that Biden promised would be attention-grabbing and base-mobilizing (it has 83 percent support among Democrats)—but best of all it wouldn’t even be a potent issue for mobilizing conservative voters.

That poll showed slightly more Republicans were for it (50 percent) than against it (49 percent). Other polls in the last few years have put the Republican “for” number even higher. A Pew poll in November 2019 found that 55 percent of Republican-leaning voters were pro-legalization.

Hell, there's even a case for it from a pro-business Republican perspective. Legal weed businesses would finally be allowed to accept credit card payments.

Ignoring an Open Goal

There are a lot of popular things Biden and the Democratic leadership might have been able to do by this point in the president’s term with just a little bit more political will. They absolutely could have ignored the Senate parliamentarian, for example, when that staffer—who issues non-binding opinions and who could simply be fired at any time—told them they couldn’t use the reconciliation process to raise the federal minimum wage to $15 an hour a year and a half ago. About 62 percent of Americans support that one. Moreover, many low-income Americans would know they owed the raise that brought them out of poverty to Democratic action—which might have helped the party avoid the coming electoral apocalypse.

But changing the administration’s weed policy would be even more popular and the fucking parliamentarian wouldn’t even have to be consulted. It’s a no-brainer. A wide open goal.

And yet.

Back in April he was “reviewing” powers that no one anywhere doubts that he has. (Seriously, if anyone has a novel legal theory according to which the president can’t deschedule marijuana by executive action and pardon any federal prisoner he chooses to pardon, I’d love to hear it.) What’s happened in the last three months?

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Has Biden just forgotten? Unlikely. Just last week, three of the most high-profile senators in the Democratic Caucus (2020 presidential candidates Bernie Sanders, Elizabeth Warren, and Cory Booker) sent Biden a letter urging the administration to “use its existing authority to (i) deschedule cannabis and (ii) issue pardons to all individuals convicted of non-violent cannabis-related offenses.”

Y’know, folks, it’s just like Biden promised—explicitly, more than once, and in so many words—he would do when he was running for president. It’s also just like the overwhelming majority of Americans want him to do.

Biden was a hardcore War on Drugs hawk for most of his Senate career. He’s one of the villains of Radley Balko’s excellent 2014 book Rise of the Warrior Cop. Maybe in his heart of hearts he wants federal weed-smokers to rot in jail. If so, though, why did he promise to deschedule cannabis, pardon the federal prisoners, and expunge the ex-cons’ records when he was running for president?

It's hard to see an answer to that question other than “he knew it would be good politics.” It would be even better politics for him to actually do it now.

And yet.

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