The overturning of Roe v. Wade, combined with a largely unknown workers’ compensation case brought before the U.S. Supreme Court, for which certiorari was recently denied, reveal the Biden administration’s position on cannabis: In the Biden administration he doesn’t care about cannabis issues.
Or is the Biden administration so concerned about cannabis issues that it won’t leave them in the hands of the current judiciary? Or something in between?
The scope of Roe
Regardless of your opinion on the correctness or wisdom of the Supreme Court’s 1973 decision in Roe v. Wade, the decision to overturn it this June in Dobbs v. Jackson Women’s Health Organization represents a potential radical change in the court’s jurisprudence.
In addition, it represents the current court’s willingness to adopt forceful and decisive opinions on matters of broad political and cultural significance.
Cannabis is certainly one of those issues that sits at the intersection of law and order, popular opinion, and individual freedom.
So what does Roe have to do with the Biden administration’s approach to cannabis? Stay with us: In the words of Andy Dufresne in “The Shawshank Redemption,” if you’ve come this far, maybe you’re ready to go a little further.
Why are you reading about a workers’ compensation case?
Earlier this year, the US Attorney General filed a brief in Musta v. Mendota Heights Dental Center, a case challenging the Minnesota Supreme Court’s 2021 ruling that the Controlled Substances Act preempts an order under a Minnesota workers’ compensation law that required an employer. to reimburse an employee for the cost of medical marijuana used
to treat a work injury.
The attorney general concluded that the Minnesota Supreme Court’s decision was
correct for the simple reason that when a federal law like the CSA prohibits possession of a particular item, it preempts a state law that requires a private party to subsidize the purchase of that item.
Despite the seemingly clear-cut nature of marijuana’s classification under the CSA, the attorney general acknowledged that medical marijuana law is rapidly evolving, even characterizing it as “a hazy thicket.”
However, he appeared to view Congress’s failure to act affirmatively and amend the CSA as determinative, and ignored recent congressional actions that belie preemptive intent.
For example, Congress has consistently passed appropriations bills that prohibit the use of appropriated funds to prevent states, as noted in the attorney general’s brief, from “enforcing their own laws that authorized the use, the distribution, possession or cultivation of medicinal marijuana”.
The attorney general dismissed the appropriations issue as a mere “funding limitation,” not “a repeal of the CSA’s substantive criminal prohibitions.”
The attorney general was equally unfazed by Congress’ decision to narrow the definition of marijuana. Instead, he repeatedly argued that siding with the employee would be tantamount to allowing “state laws that compel third-party restitution for federal crimes.”
The court recently denied certiorari, meaning it will not hear the case at this time.
So what are we to make of this?
We believe there are three possible explanations for the Attorney General’s approach, and while they are not mutually exclusive, they are all significant in their own way.
But first, one thing is certain: Nearly two years into the Biden administration, during which Democrats have enjoyed majorities in the Senate and House of Representatives, no meaningful cannabis reform has become law. Nor, in our judgment, is any significant reform likely to occur before the midterms, even though there appears to be majority support in both houses of Congress for common sense reform.
That said, here are the three most likely takeaways from the latest brief from the attorney general, who is not the president’s personal lawyer but is tasked with representing the United States’ positions in litigation:
1. The Biden administration does not support meaningful cannabis reform.
Maybe President Joe Biden just doesn’t support liberalizing federal cannabis policy.
We don’t think this is right, at least not completely and unequivocally, but there is evidence of this view in the president’s earlier political life.
Conventional wisdom says the Biden administration is generally good for the cannabis industry, but perhaps not as good as, say, Sen. Bernie Sanders, I-Vt., or Sen. Cory Booker, D-N.J. — or even, depending on who you ask, Vice President Kamala Harris.
But Biden is certainly better than a potential Republican presidential nominee like Florida Gov. Ron DeSantis, former Vice President Mike Pence, or a more conservative GOP option, even if it could be argued that the Trump administration, essentially, it continued with the hands-off approach. Obama administration.
But close observers always wondered whether Biden’s history on cannabis issues was an indication that he was, at best, ambivalent. While the Democratic National Committee’s 2016 platform advocated a “reasoned path toward future legalization,” DNC members voted for the platform’s strike language regarding legalization in the 2020 platform:
rather than focusing on federal recreational decriminalization, legalized medical use, and allowing states to set their own rules and regulations.
The 2020 platform tracked recommendations made by the Biden-Sanders Unit task force organized by former Biden and Sanders, and more broadly reflected the measured approach Biden appears to be taking toward large-scale recreational legalization.
And for Biden’s personal opinion? He was far from the most pro-cannabis Democrat running for president in 2020. During his long tenure in the Senate, he championed several anti-crime laws.
For example, in 1986, Biden introduced the Comprehensive Narcotics Control Act, which sought to establish a cabinet-level office to coordinate the federal government’s drug control policies, and in 1993, Biden sponsored the Drug Control Act violent crime and law enforcement, a precursor to the 1994 Crime Act.
With that track record, some concluded that a Biden presidency would take a dim view of the cannabis industry.
People can change their minds about issues over time, and politicians are no different. But reasonable people can disagree about whether cannabis reform is an issue Biden would want his administration to take up, and to that end, whether the attorney general’s recent opinion is a reflection of his reluctance to do so. .
2. President Biden is an institutionalist who protects federal power.
Perhaps the attorney general’s approach represents the president’s long-held view of the scope of federal power, specifically, that it is a protection of the federal government’s authority and its singular authority to devise and enforce national policy on controlled substances
He has spent almost his entire adult life as a federal official and has used his various positions to push for positions he believes are good for the American people.
This history leads him to conclude that the federal CSA’s prohibition of marijuana as a Schedule I narcotic necessarily trumps any state law to the contrary and, by extension, means that a state, here, Minnesota, cannot refund the payments, because to do so would be? constitute a violation of federal law, either to aid and abet or perhaps
conspiring to violate the federal CSA?
It is possible, though unlikely, that his institutional leanings lead him to this conclusion.
3. The Biden administration is strategically blocking the current court from ruling on an important cannabis issue.
Third, perhaps the president has concluded that his views on cannabis must yield to the practical reality that taking the matter to court, as currently constituted, would ultimately harm the cannabis industry, regardless of its personal opinion on the matter.
This is Roe’s analogy. Almost all court watchers consider the current Supreme Court to be conservative, and the overturning of Roe demonstrates the extent to which this court will put a firm thumb on cultural issues that many have considered settled.
And, as many of these observers say, if the court is willing to pursue this kind of radical change in what they see as established law, the court may be willing to go even further on an issue like cannabis, which has long that has. existed in a gray area of the law.
Our sense is that this concern is the basis of the attorney general’s position in the workers’ compensation case, which is that the cannabis industry can exist under current federal law and enforcement policy.
If the court takes a tough view of what constitutes aiding and abetting or conspiring to violate the federal CSA, it could be devastating to the industry, as it could cause industry participants, not just cannabis operators, but all providers of services, from banks and real estate companies to insurance companies and utilities, just to name a few, to reconsider this stake.
If this is a valid concern, then the attorney general’s approach has the benefit of maintaining the status quo, even if it does not move the industry forward.
Whether you view waiving the white flag as a tactical retreat to win the long game, the immediate reality is that cannabis advocates won’t get what they want, but at least they might not get what they fear.
One of the most frustrating things to hear from a lawyer is, “I’m not sure.” So we won’t say it, even if it’s true.
The bottom line is that Congress should step in and bring some order to the situation. Congress could change the CSA and address these issues, or it could amend other federal rules that would give cannabis operators and service providers more confidence to participate in the industry.
As a recent example, in July, Sens. Chuck Schumer, D-N.Y., Booker and Ron Wyden, D-Ore., introduced the Cannabis Stewardship and Opportunity Act. Like the Marijuana Opportunity Reinvestment and Elimination Act, which passed the House earlier this year, the CAOA would decriminalize cannabis at the federal level.
It remains to be seen whether these laws will gain traction or stall in Congress.
To bring it back to one of the author’s favorite movies: Remember that hope is a good thing. Maybe the best thing. We hope to be updating you with more definitive news in the future.
Reprinted with permission. This article, “Dobbs, Workers’ Comp. Brief Hint At Biden’s Cannabis Stance,” was published by Law360 on August 4, 2022.