American voters may be sharply polarized over many political issues of the day, but they are increasingly unified on one policy: legalizing marijuana.
Just look at the results of November's election — every statewide measure to relax marijuana prohibition won. Arizona, Montana and New Jersey voted to legalize marijuana for adults 21 and older. Medical marijuana was approved in Mississippi. South Dakota voters backed both recreational and medicinal use.
Now, 15 states — with one-third of the American population — have chosen to legalize adult use of marijuana. Thirty-six states, with nearly 70% of the population, have legalized medical marijuana. From deep red states to deep blue ones, there's widespread support for ending cannabis prohibition.
Yet marijuana remains illegal under federal law. Marijuana is classified as a Schedule 1 drug, like heroin, meaning it has no medicinal value and is highly addictive. That classification is a relic of the war on drugs. And it creates a serious and illogical conflict that makes it harder to properly research, regulate and tax marijuana, even as the cannabis industry grows larger with each new legalization initiative. Clearly the incoming Biden administration and Congress need to modernize federal laws and policies to reflect the reality on the ground.
There's been little progress at the federal level over the last four years. Despite several bipartisan bills to end or ease the conflict between state legalization and federal law, Congress has repeatedly failed to move legislation. President Donald Trump didn't help matters by picking two prohibition hard-liners — Jeff Sessions and then William Barr — to run the Justice Department.
Sessions rescinded the 2013 Justice Department memo that outlined the Obama administration's hands-off approach to states that had legalized marijuana. There was little practical effect from Sessions' move; the DOJ didn't suddenly begin targeting state-compliant pot shops. But the lack of clear guidance from the federal government left businesses and states in legal limbo.
The most logical thing the federal government could do is change the law. There are several bills pending in Congress to eliminate the conflict.
One of the most promising, the Marijuana Opportunity Reinvestment and Expungement Act, is expected to pass the House of Representatives with bipartisan support this month. The act would decriminalize marijuana at the federal level, expunge prior federal marijuana convictions and impose a federal tax on sales of cannabis, with the money going to communities most affected by the war on drugs.
The House has repeatedly passed the SAFE Banking Act, which would prevent federal regulators from punishing financial institutions that provide services to marijuana businesses operating in compliance with state laws. Most cannabis businesses can't open bank accounts or accept credit card transactions because financial services companies refuse to serve them for fear of being penalized by federal regulators. As a result, marijuana transactions are typically made in cash, which is dangerous for employees and makes it harder to collect taxes.
If passed again next year, both of these bills would probably be signed into law; after all, Sen. Kamala Harris, D- Calif., the vice president-elect, sponsored the decriminalization bill. The real hurdle would be a Republican-controlled Senate. Majority Leader Mitch McConnell, R- Ky., has been wary of marijuana legislation, and as long as he's in charge, passing reform bills will be challenging. However, there's still a lot the Biden administration can do without Congress' help.
To start, Joe Biden can nominate an attorney general who will restore the guidelines from the 2013 memo and prioritize going after drug cartels, interstate trafficking and illegal pot farms on public land — not targeting law-abiding growers and sellers in legalized states. He can also direct U.S. Customs and Border Protection to discontinue its stringent enforcement of the Immigration and Nationality Act, which bars travelers from entering the country if they admit to working or investing in the marijuana industry or to simply having used marijuana. That's a silly policy considering that Canada has legalized marijuana and Mexico is poised to do the same.
The Biden administration should also end long-standing barriers to cannabis research, which the Drug Enforcement Administration can do through the rule-making process. Because marijuana is listed as a Schedule 1 drug, the government imposes strict limits on access to cannabis. There's just one facility in the country that has permission to grow cannabis for study. Universities and other research institutions, meanwhile, are wary of approving marijuana research for fear of losing federal funding. Those conditions make it hard to conduct the kind of in-depth research necessary to understand both the benefits and the dangers of marijuana use.