We have a long history here on the law Law Blog analyzing the movements of the federal government and, in particular, the Ministry of Justice (DOJ) when it comes to federal enforcement of the Federal Regulated Substances Act (CSA). Over the years we’ve really focused on the acting U.S. attorney general and how he treats state legal cannabis top down. It appears that the DOJ has been doing an interesting legal and political dance with state-legal cannabis for decades. And it seems that weird legal tango can continue under the election of President-elect Joe Biden for US Attorney General Merrick Garland, who is the former Chief Justice of the US Appeals Court for the DC Circuit and former US Supreme Court nominee the former is President Obama.
Now you might be wondering why I was even worried about Judge Garland and the DOJ when the Democrats flipped the Senate after the Georgia Senate runoff – we now have a Democrat in the White House and a Democrat-controlled Congress. This combination seems to guarantee the passage of the MORE bill, which otherwise would most likely have died in the Senate with Republicans majority. The Dems also made it clear on their 2020 platform that they would stand behind decriminalizing cannabis possession, re-scheduling cannabis in the CSA to remove it from Schedule I, and legalizing medical cannabis. And now Majority Leader Chuck Schumer said back in October last year that legalizing cannabis would be a high priority if the Democrats took over the Senate.
The reason Judge Garland and the DOJ are still important is because, despite the democratic control of the White House and Congress where moderate Democrats have been notoriously ambiguous about the treatment of cannabis legalization for years, the MORE Act is not guaranteed. President-elect Biden also stops advocating the legalization of cannabis for non-medical purposes (if you remember, we gave him a “D” rating when we rated the then presidential candidates and their stance on cannabis). And with the MORE bill itself, it really does seem like Democrats are just looking to remove cannabis from Appendix I of the CSA without going into much more detail about its regulation, taxation and government oversight, which will also delay the passage of the MORE bill if these very important details will probably need to be cleared up now if the law really has a chance of being passed. Furthermore, with the upcoming 2022 mid-term election, Democrats don’t have long to act if they really want cannabis legalization, and a Republican minority in the Senate could balance any legalization efforts accordingly. In principle, the MORE law is by no means complete, which unfortunately means that the DOJ’s chief prosecutor will still be important for state-legal cannabis companies, at least for the next few years.
The DOJ first stated its enforcement priorities back in 2009 with the Ogden Memo (Ogden was Deputy Attorney General at the time), which essentially states that a medical cannabis operator should clearly and unambiguously comply with applicable state laws on medical cannabis would not be a top enforcement priority for the DOJ. Then, in 2011, the first Cole memo (yes, this Cole) essentially withdrew the Ogden memo, and the DOJ got very active in pursuing government-sanctioned medical cannabis deals. Fast forward to 2013, and Cole gave us the famous Cole Memo with eight specific enforcement priorities that the DOJ should follow in states with state-legal cannabis. This memo (and all of the DOJ’s other cannabis enforcement guidelines) was overturned by then-US Attorney General Jeff Sessions in January 2018 and replaced with a one-page memo, which essentially indicated that US prosecutors were enforcing the CSA according to priorities should have their own districts. Before current U.S. Attorney General William Barr was appointed to the position, he testified in front of Congress that he and the DOJ would comply with the 2013 Cole Memo Enforcement even though he was not in love with the federal government’s handling of state-legal cannabis Principles they pretty much have. Now that brings us to Judge Garland, Biden’s candidate for US attorney general.
The only official, recent court records we have regarding Judge Garland and cannabis are from Americans for Safe Access et al. v. the Drug Enforcement Administration.
In this case, the Drug Enforcement Administration (DEA) rejected a 2002 coalition petition to reschedule cannabis to move cannabis from Schedule I to Schedule III, IV, or V under the CSA for use in treatment in the United States “, dictated by a five-part rating used by the DEA:” (1) The chemistry of the drug must be known and reproducible. (2) Adequate safety studies must be available. (3) There must be adequate and well-controlled studies that demonstrate efficacy. (4) The drug must be approved by qualified professionals. and (5) The scientific knowledge must be generally available. “The DEA rejected this petition, stating that”[t]There is currently no recognized medical use for marijuana in the United States. “[t]The limited clinical evidence available is insufficient to warrant rescheduling marijuana under the CSA. “ASA then appealed the DEA’s rejection to the DC Circuit Court (Judge Garland was a member of the three-judge panel that negotiated the appeal), arguing that the DEA’s decision was arbitrary and capricious. The Court ruled that the DEA’s rejection was neither arbitrary nor capricious when there was no “currently accepted medical use” for cannabis, as such use required “adequate and well-controlled studies to demonstrate efficacy” and “had substantial evidence ” [supporting the DEA’s] Finding that such studies did not exist.
While it may seem instructive, the previous case is not necessarily as important as Judge Garland will treat state-legal cannabis as a US attorney general if that role is completely different from that of a US Circuit Court judge. The DOJ’s mission is , “Enforce the law and defend the interests of the United States under the law; Ensuring public safety against threats from home and abroad; to take federal leadership in the prevention and control of crime; seek just punishment for those guilty of unlawful conduct; and to ensure the fair and impartial administration of justice for all Americans ”. The DOJ is not tasked with interpreting federal laws. At the same time, the US Attorney General has the power to advance cannabis replanning and the US Attorney General has wide leeway when it comes to the volume of enforcement and setting enforcement priorities (see the second Cole Memo) inherent discretion of the prosecutor, but they cannot change the law or interpret it according to their own whims or policies.
The truth is, no one can say yet how Judge Garland will treat state legal cannabis while cannabis remains illegal under the CSA, and we will not know his official stance on it (as a U.S. Attorney General) until he reaches confirmatory hearing where Hopefully the inquiring senators will be asking the tough questions about cannabis enforcement if Congress fails to get cannabis legalized. So stay tuned.