President Joe Biden can grant mass amnesty to people who have violated federal marijuana laws, congressional researchers said in a new report, adding that his administration can also move to federally legalize cannabis without waiting for lawmakers to act.
The new analysis published by the Congressional Research Service (CRS) on Tuesday examines the question: “Does the President Have the Power to Legalize Marijuana?” It’s an idea that’s been raised repeatedly in recent years, including after Sen. Bernie Sanders (I-VT) pledged to take executive action to end prohibition on day one in the White House during his 2020 presidential campaign.
While CRS found that the president cannot in fact deschedule cannabis unilaterally with an executive order, “he might order executive agencies to consider either altering the scheduling of marijuana or changing their enforcement approach.” That includes having federal officials start a process to completely remove cannabis from the Controlled Substances Act (CSA) without requiring any additional action from Congress.
Further, the president could also use his pardon powers to either individually, or on a mass scale, grant clemency to people facing charges over federal marijuana offenses, CRS concluded. That blanket amnesty could apply even to people who have committed, but have not yet been charged with, a federal cannabis crime.
The new analysis from Congress’s research arm is welcome news for advocates who’ve been pushing Biden to exercise executive authority to provide relief to people who’ve been criminalized over cannabis, as he previously pledged during the presidential campaign.
“This new report affirms what advocates have long called for when it comes to taking decisive, consequential actions to end the senseless and cruel policy of marijuana criminalization,” NORML Political Director Justin Strekal told Marijuana Moment. “Should the Biden administration wish to be in line with the political, economic and moral realities surrounding cannabis policy, it should take action with haste.”
When it comes to federal legalization, “either Congress or the executive branch has the authority to reschedule or deschedule marijuana under the CSA,” the CRS report says. However, while it is not in dispute that Congress has that ability, and the administration can take action to reclassify cannabis out of Schedule I to a different category, some analysts have questioned whether the executive branch can completely deschedule the drug under current statutes.
The attorney general can initiate a process to push for the rescheduling of marijuana under the CSA by requesting a scientific review directly to U.S. Department of Health and Human Services (HHS). Under HHS, the Food and Drug Administration (FDA) would then assess the scientific, medical and public health implications before submitting that review to the Justice Department.
The HHS secretary or an outside party could also file a rescheduling petition, which would then be reviewed by the attorney general, who has usually delegated that responsibility to the Drug Enforcement Administration (DEA).
Executive authority on full descheduling is another matter, however. Attorney General Merrick Garland recently received a request from Sens. Elizabeth Warren (D-MA) and Cory Booker (D-NJ) to initiate a descheduling process, but a close reading of the relevant law raises questions about whether he can actually accomplish that legally.
Federal law says that if international treaties to which the U.S. is a party require control of any given substance, the attorney general “shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to” the separate HHS review.
Federal agencies like DEA have in the past referenced international treaty obligations as a reason they’re unable to domestically end marijuana criminalization.
It’s also the case, however, that the country has previously flouted such international consensus in other contexts such as military engagement. But as far as what the U.S.’s own federal statute allows, one interpretation would suggest the attorney general could be limited to moving marijuana to the lowest enforcement category under the CSA and could not fully deschedule it on his own.
The CRS report does not specifically weigh in on the international treaty complications and related federal laws implicated by them. The author directed Marijuana Moment to a prior CRS report on broader international implications of drug scheduling that doesn’t appear to directly address the part of U.S. code that some analysts say could prevent executive descheduling.
Beyond the question about broader administration powers, Biden himself as the president is not able to unilaterally deschedule marijuana, CRS said. While some like Sanders have suggested that it’s something the president could do through an executive order, legal experts say that it’s not so simple.
“The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area (federal controlled substances law is an exercise of Congress’s power to regulate interstate commerce),” the report states. “Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.”
However, while the president is limited in what he can do about existing federal laws, the report notes that “he has substantial control over how the law is enforced.”
“For instance, the Constitution grants the President the power ‘to grant Reprieves and Pardons for Offences against the United States.’ That clemency power extends to all federal offenses, ‘except in Cases of Impeachment,’” the report says. “The President may grant a pardon at any time after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: the President may also issue a general amnesty to a class of people.”
As congressional lawmakers push to enact comprehensive legalization legislation, that’s an alternative approach that advocates want Biden to pursue in the meantime.
A group of more than 150 celebrities, athletes, politicians, law enforcement professionals and academics signed a letter that was delivered to Biden in September, urging him to issue a “full, complete and unconditional pardon” to all people with non-violent federal marijuana convictions.
That letter came just as the administration started encouraging about 1,000 people who were temporarily placed on home confinement for federal drug offenses to fill out clemency application forms.
Early in his administration, Biden received a letter from 37 members of Congress that called on him to use executive authority to mass pardon all people with non-violent federal marijuana convictions.
The ask for this unique form of presidential clemency is modeled on actions taken by Presidents Gerald Ford and Jimmy Carter in the 1970s to categorically forgive Americans who avoided the draft for the Vietnam War.
CRS said in the new report that it “appears that the President could provide clemency for some or all past federal marijuana-related offenses without making any changes to the CSA. However, such an exercise of the clemency power might not address all possible collateral legal consequences of marijuana-related activities, because some of those consequences do not depend on a person being charged with or convicted of a CSA violation.”
“Clemency also would not prevent prosecution of future offenses if the same President or a future administration ended the policy of amnesty,” the report says. “Furthermore, the presidential clemency power extends only to federal offenses; it does not affect offenses under state law.”
Another option at Biden’s disposal would be to “direct the Department of Justice (DOJ) to exercise its discretion not to prosecute some or all marijuana-related offenses.”
“Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed,’” CRS said. “DOJ is primarily responsible for prosecuting criminal violations of the CSA and possesses significant prosecutorial discretion in doing so.”
It did exercise that discretion under the Obama administration by issuing guidance to federal prosecutors that laid out federal enforcement priorities for marijuana-related offenses. That guidance was rescinded under the Trump administration’s first attorney general, Jeff Sessions, however.
The CRS report also provides analysis on the broader powers that Congress has when it comes to controlled substances.
“If Congress wishes to remove or scale back federal legal restrictions on marijuana beyond what the executive branch chooses to pursue, it has significant authority to do so,” it said. “While the CSA does not grant the President the power to change the status of a controlled substance or the punishments for controlled substance offenses, Congress unquestionably holds the power to amend the CSA to reschedule or deschedule a controlled substance or change applicable penalties.”
In both the House and Senate, there are efforts underway to use those powers to end marijuana prohibition.
A key House committee in September voted in favor of a bill to federally legalize cannabis, and Senate leadership is separately working on marijuana reform legislation.
CRS also said that “while Congress cannot directly change state laws, it may be able to override state laws via preemption or enact measures designed to encourage the states to change their own laws.”