Can the United States President Joe Biden legalize cannabis without authority from Congress? Technically, no. The US Constitution doesn’t allow it. But then again, the prohibition of cannabis is unconstitutional. Additionally, the US Constitution has never stopped presidential administrations in the past. Passing an “executive order” is a common way for presidents to act like monarchs instead of the elected representatives of a constitutional republic.
At least six Democrat Senators have asked Biden to legalize cannabis without Congress. But should he? Executive orders can work to the ordinary person’s advantage – like the legalization of cannabis. But it’s also been used to violate individual rights and perpetuate the war machine. So it’s a bit of a double-edged sword.
Senators Want Biden to Legalize Cannabis Without Congress
Senators Elizabeth Warren, Kirsten Gillibrand, Ed Markey, Ron Wyden, Bernie Sanders, and Cory Booker called on Biden to legalize cannabis without Congress earlier this month. In a letter, they wrote the Biden administration should “use its existing authority to (i) deschedule cannabis and (ii) issue pardons to all individuals convicted of nonviolent cannabis-related offenses.”
“The Administration’s failure to coordinate a timely review of its cannabis policy is harming thousands of Americans, slowing research, and depriving Americans of their ability to use marijuana for medical or other purposes.”
Addressing the letter to Biden, Attorney General Merrick Garland and Health and Human Services (HHS) Secretary Xavier Becerra, the Senators say it’s a follow-up to earlier requests.
One of these earlier requests was in October 2021. Addressed to the Department of Justice (DOJ), the Senators wanted the bureaucracy to “use its existing authority under the Controlled Substances Act of 1970 (CSA) to begin the process of removing cannabis’s classification as a Schedule I drug.”
The DOJ response was negative.
The HHS is adamant that “cannabis has not been proven in scientific studies to be a safe and effective treatment for any disease or condition” and therefore stands as “the sole rationale for the DOJ’s lack of action.”
Of course, cannabis has widely accepted medical benefits. The US Food and Drug Administration (FDA) approves CBD as a treatment for epilepsy. And alcohol is certainly not a safe and effective treatment for diseases, but it’s quite legal.
Excerpts from the Letter to Biden
The Senators’ letter praised the legal states for taking a step toward undoing the “racist and harmful legacy of cannabis policies.”
“The legacy of the war on drugs is pervasive. It is estimated that over 40,000 individuals are still incarcerated for cannabis related offenses,” they wrote. “A report released by the American Civil Liberties Union in 2020 found that Black individuals were nearly four times as likely to be arrested for cannabis possession even with comparable usage rates amongst individuals of all races. In some states black individuals were almost 10 times more likely to be arrested for cannabis possession.”
“We ask that the Biden Administration act quickly to rectify this decade long injustice harming individuals, especially Black and Brown communities,” the letter said.
The Senators also said they’d like Biden to “pardon all individuals convicted of nonviolent cannabis offences, whether formerly or currently incarcerated.”
History of Executive Orders
As noted in the HHS response (misinformed and incorrect), the Biden administration isn’t interested in legalizing cannabis without Congress.
Under Article II of the US Constitution, Presidents have the power to issue executive orders. The first US president, George Washington, issued eight executive orders. In contrast, Franklin D. Roosevelt signed over 3,700 executive orders during his 12-year reign.
Like the Commerce Clause, the scope of executive orders has increased tenfold. As a White House aide to Bill Clinton once said, “Stroke of the pen, law of the land.”
When George Washington issued his first order on June 8, 1789, it was to force federal departments to submit reports to the president about the “full, precise, and distinct general idea of the affairs of the United States.”
By 1861, President Abraham Lincoln was using executive orders to suspend habeas corpus. In 1942, Roosevelt issued an executive order to imprison American citizens of Japanese descent.
Of course, the Supreme Court can stop this egregious use of power. In 1952, they struck down President Truman’s executive order to nationalize the country’s steel mills during the Korean War.
Post 9/11 Executive Orders
By the 2000s, and indeed, after 9/11, executive orders have been used to bypass Congress with reckless abandon. George W. Bush signed executive orders establishing a surveillance state and limiting public access to government documents. The National Security Agency (NSA) can eavesdrop on American phone calls without a warrant, thanks to Bush’s executive orders.
Despite campaigning against such executive authority, President Barack Obama increasingly relied on executive orders to advance his agenda when Congress wouldn’t.
Presidents Ronald Reagan and Donald Trump have used executive orders to peel back government regulations.
Donald Trump’s border wall with Mexico was an executive order, and so was Biden’s order to halt the wall’s construction.
On his first day in office, President Biden issued nine executive orders. The most of any president in US history. At this rate, Biden will overtake Roosevelt for the number of executive orders issued if he manages to hang on for another term.
Could Biden Legalize Cannabis without Congress?
Could Biden legalize cannabis without Congress? Yes, and there’s no reason he can’t do it today. There isn’t a concern for the proper separation of powers. And there certainly isn’t any respect for the constitution beyond paying lip service to it.
Biden had no problem issuing an executive order about abortion following the Supreme Court’s reversal of Roe v. Wade.
Joe Biden’s approval ratings are in free fall. Mid-term elections are around the corner. Nobody on the right likes Joe Biden. So what loss could there be from legalizing cannabis federally via executive order?
Biden spying on American citizens is eh-okay, but legalizing cannabis is a non-starter?
Biden’s stance has more to do with ideology than practicality. And it’s not the ideology of classical liberalism where the proper channels to legalize cannabis must go through Congress.
No, this is anti-cannabis ideology no different from many Republican beliefs. Biden campaigned in 2020 on decriminalizing cannabis and expunging cannabis convictions. But he hasn’t done any of those things.
And why would he? When he served as a Senator, he wanted to increase the enforcement of anti-cannabis laws. He criticized then-President George H.W. Bush for being too soft on drugs.
Biden is the man behind the Crime Bill of 1994. Considered responsible for the mass incarceration of nonviolent drug offenders, most of them black.
Biden has been anti-cannabis since 1974. There’s no evidence he’ll change his mind. And given some of his recent speeches and antics, one has to question whether Biden has much of a mind left to change.
So can Biden legalize cannabis without Congress? Yes, just as he and his predecessors legalized all sorts of actions via executive orders. But will he do it? Unlikely.