Earlier this month, the Biden Administration dealt another blow to supporters of cannabis policy reform, and in this case, cannabis industry investors specifically. As reported by Politico, the Biden White House clarified its policy on prospective administration employees investing in the cannabis space, effectively prohibiting anyone with as much as minor stock holdings in cannabis companies from obtaining jobs in this administration.
According to an administration memo, “Eligibility may be negatively impacted if an individual knowingly and directly invests in stocks or business ventures that specifically pertain to marijuana growers and retailers… Decisions to willfully invest in such activity could reflect questionable judgment and an unwillingness to comply with laws, rules, and regulations.”
One might argue that the only people with questionable judgement in this situation are President Biden and those in his administration who believe that people who have invested their money in the fastest growing industry in the country are unfit to serve their country and hold jobs in this White House.
This shouldn’t come as a huge surprise of course, since this administration has shown nothing but ambivalence or outright hostility towards cannabis consumers, investors and supporters. This policy comes after the Biden administration fired five employees last year over their use of cannabis and warned that past or present use could disqualify someone from working in this administration.
Those who have followed Joe Biden’s career understand that he has typically been one of the worst Democrats when it comes to marijuana policy reform, having long been an unabashed drug warrior in the United States Senate before more recently softening his positions on criminal justice reform. But while some reform supporters have held out hope that President Biden would change his tune on this issue once in the White House, particularly in light of the overwhelming support for legalization among Democratic party voters and strong majority support among all voters, this administration has been downright Seinfeldian on the issue of marijuana policy. That is to say, when it comes to cannabis, the Biden administration has done absolutely nothing.
While it is true that most major marijuana reforms need to come through Congress, and to date the Democratic controlled Congress has been unable to pass a single piece of meaningful reform legislation, the Biden White House has plenty of tools at its disposal to help move this issue forward. Yet to date, aside from chastising cannabis industry investors and firing cannabis consumers, the administration has refused to take action.
Arguably the easiest move this administration could take would be for the Department of Justice to reinstate the Obama era “Cole Memo,” rescinded by Donald Trump’s then Attorney General Jefferson Beauregard Sessions III, which stated that it was not a priority for U.S. Attorneys to go after cannabis businesses that operated in compliance with state law.
But just reinstating a 2013 Obama era guidance memo is hardly the only action this administration could take to help protect cannabis consumers and marijuana industry entrepreneurs. The President could conceivably instruct the IRS to reinterpret the 280e provision of the tax code, meant to prevent illegal drug traffickers from claiming standard business deductions on their taxes, but which has since been applied to state legal cannabis businesses. This tax provision has resulted in cannabis businesses facing exorbitantly high tax rates, much to the detriment of smaller or equity operators in the space, and could be resolved with a simple administrative reinterpretation.
Biden’s Justice Department could also take the Cole Memo a step further, declaring that they would permit interstate commerce between states that have fully legalized. Such a move could provide tremendous relief to craft cultivators in states like California, Oregon, and Washington, long known for growing some of the best quality cannabis in the world, but who are suffering from low prices due to over-production and an inability to serve market demands in states that are less conducive to large-scale or quality cannabis cultivation.
This administration could provide wide scale relief to the tens of thousands of Americans who have suffered a federal marijuana related criminal conviction in their lifetimes by providing large scale clemency and expungement of criminal records. Presidents Obama and Trump both issued numerous pardons and clemencies to low-level drug offenders. Yet far from taking this approach to the next level by issuing blanket clemencies for all past federal cannabis offenses, the Biden administration has not even kept up with their predecessor’s level in issuing relief to the most egregious of cases.
The Biden White House has also shown little interest in using its political weight to help move this issue along in Congress. Earlier this month, Congress passed its annual budget that kept in place a rider an eight year old rider from Rep. Andy Harris (R-MD) that prohibits the District of Columbia from implementing a voter approved law to legalize marijuana in the nation’s capital. This is largely because the rider was included in the budget proposed by President Biden earlier this year. Surely, if this administration had wanted to respect the will of D.C. voters, they would have asked Congress for its removal. But once again, the Biden administration proved that they could care less about the interest of cannabis consumers.
Even Vice-President Kamala Harris, once arguably the Senate’s biggest champion for legalization, has been all but muted on the issue since she took on the role of Biden’s #2. Shortly after taking office, when pressed on Vice-President Harris’ current stance on marijuana reform, a spokesperson for the VP stated “her positions are now the same as Biden’s.”
With Republicans widely expected to take back control of at least one house of Congress in the midterms, and current GOP leadership showing no signs of supporting even the mildest of cannabis reforms, it is likely that any reforms over the next two years will have to come in the form of administrative and executive actions from the White House. But given this administration’s track record on cannabis in its first fifteen months in office, it seems increasingly likely that our window for cannabis reform in a Biden administration may be closed this coming November.
If cannabis advocates want to see any positive movement on this issue in 2023 and beyond, they need to start shifting their advocacy from Congress to the administration now, ahead of the midterms, after which every progressive cause in DC will be jockeying for the administration’s attention.