Marijuana Law, Policy, and Authority

ABA Passes Resolution Calling Upon Congress to Reform Federal Marijuana Policy

Posted by on Monday, August 19, 2019 in News, Updates.

I am pleased to report that the American Bar Association (ABA) just adopted a resolution urging Congress to reform federal marijuana laws. The resolution declares:

RESOLVED, That the American Bar Association urges Congress to enact legislation to exempt from the Controlled Substances Act any production, distribution, possession, or 3 use of marijuana carried out in compliance with state laws;

FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation to remove marijuana from Schedule I of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq.; and

FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation to encourage scientific research into the efficacy, dose, routes of administration, or side effects of commonly used and commercially available cannabis products in the United States.

I am particularly pleased because I served as the Reporter for the Task Force on Marijuana, Federalism, and Separation of Powers that drafted the resolution and the report that makes the case for it. You can find the full report here. The ABA has also posted a short video of Steve Saltzburg very crisply and clearly making the case for the resolution (Resolution 104) to the ABA in mid-August. See here.

In this post, I write only for myself and not as Reporter for the Task Force (or in any other representative capacity for the ABA). I just want to highlight a few things about the resolution and accompanying report:

1) The Task Force Report Highlights the Broad Appeal of Federal Reform

The Task Force report makes the case for federal reform to a broad audience – i.e., it doesn’t just appeal to individuals who already support legalization. In large part, it does this by explaining why the current tension between federal and state law is undesirable for everyone and not just for marijuana users / suppliers. For example, it points out that federal banking regulations force many state-licensed marijuana suppliers to transact all of their business in cash, which, in turn, makes it more difficult for government officials to ensure that those suppliers are complying with regulations (e.g., because cash transactions do not leave a paper trail). I suspect that the report’s effort to portray the problems caused by current federal marijuana policy in a neutral light may help explain why the resolution got such resounding support.

2) The Report Recognizes that Congress must Take the Lead with Reform

Each of the three clauses in the resolution is addressed to Congress. This is no mistake. As explained in my book (see, e.g., pages 272-276), the Executive Branch’s authority to remake federal marijuana policy is limited (and may have been exhausted already). In other words, Congress must pass new legislation to resolve the tension between state and federal marijuana policy and thereby remove the problems caused by that tension; the Executive Branch cannot do this on its own.

3) Congress Would Likely Need to Adopt a Package of Federal Reforms

As should be clear, the resolution makes three separate recommendations to Congress:

1) Adopt the STATES Act (or something like it) to enable states to turn off the federal marijuana ban in certain circumstances [First Resolved Clause], and

2) Re- or even de-Schedule marijuana under the CSA [Second Resolved Clause], and

3) Support more research into marijuana [Third Resolved Clause]

This multi-prong proposal recognizes that no single reform necessarily addressees all of the problems that arise from current federal marijuana policy. For example, the U.S. Department of Veterans Affairs (VA) has declared that “[a]s long as the Food and Drug Administration classifies marijuana as Schedule I [controlled substance] VA health care providers may not recommend it or assist Veterans to obtain it.” See here. Because of this policy, VA physicians would not be allowed to recommend marijuana to their patients even if Congress adopted something like the STATES Act – after all, marijuana would remain on Schedule I. Or consider a second example: Suppose Congress passed the STATES Act, but did not re- (or de-) schedule marijuana. Following this change, scientists at the University of California would have a much easier time conducting research on the health effects of marijuana, but similarly situated scientists at the University of Texas would not. That’s because Texas continues to ban the possession, manufacture, and distribution of marijuana, so researchers in that state would still be committing state and federal crimes – and likely jeopardizing federal grant funds — if they handled the drug, notwithstanding passage of the STATES Act. The same researchers in California, by contrast, would face no such threats because that state has repealed its state ban on the drug — and with it, the federal ban too (again, if the STATES Act is passed).

Only re-scheduling or de-scheduling marijuana would eliminate such problems posed by the federal ban. (To be sure, passing legislation that de-schedules marijuana – which is an option under the Second Resolved Clause of the resolution – would likely moot the need for the STATES Act. After all, if marijuana is no longer governed by the CSA, the states no longer need the option to turn off the CSA’s prohibition. So if Congress passed legislation de-scheduling marijuana, it would not also need to pass the STATES Act.)

The Third Resolved Clause recognizes that even though there is promising evidence regarding marijuana medical potential (and mounting evidence that marijuana is less harmful than once believed), there is still a need for more research on the drug. Re- scheduling or even de-scheduling marijuana and / or adopting the STATES Act would allow more research to be done, e.g., because these measures would reduce the obstacles researchers now face. But affirmative federal support for research (e.g., subsidies) — which is what I think the Third Resolved Clause calls for – would go a step further and help resolve many lingering questions regarding marijuana’s health effects.

4) Background on the Resolution

The resolution took a long time to prepare and to marshal through the necessary steps for approval at the ABA. The Task Force (noted above) was formed by the Criminal Justice Section of the ABA back in January of 2018. It was comprised pf myself and one other academic (Sam Kamin, who served as Chair), as well as a diverse group of distinguished lawyers and current / former government officials. The Task Force drafted an initial report and resolution, which was presented to the Criminal Justice Section’s Council (the Section’s governing body) in April 2019. The Council approved the resolution with some thoughtful revisions, which the Section then proposed to the ABA’s House of Delegates – basically the whole organization’s policymaking body. The House of Delegates just approved the resolution at its meeting in mid-August – notably, with very little opposition (as you can see in the video linked above). This means that the resolution has the endorsement of the ABA, the nation’s (if not the world’s) largest professional organization of lawyers. I am under no illusions that this will suddenly prompt Congress to act, but it has to help.

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4 Comments on “ABA Passes Resolution Calling Upon Congress to Reform Federal Marijuana Policy”

Thank you, ABA! May Congress listen to your excellent three-pronged recommendation. It is absurd the Federal government has not joined the majority of states in the passage of more judicious cannabis laws. De-schedule it. Invest in (or at least allow) research to determine its efficacy for various medical conditions and its overall impact on the health of users. Stop persecuting and prosecuting those who use it and those who grow it. There is nothing to fear here.

Constance Gee on August 19th, 2019 at 7:18 pm

Once again, I want to thank you for your principled leadership and persistence in moving such an august organization as the ABA to support science, common sense and compassion with the passage of this resolution. Frankly, it goes against the financial self-interests of defense attorneys and prosecutors alike who have made literally billions of dollars in fees and grants to deal with people who only sought illegal (and pain free) smiles. If attorneys are finally willing to forego that easy money, perhaps there’s hope that we might be able to decouple physicians (much less legislators) from the over and under the table largesse that they accept from the pharmaceutical industry to maintain the reefer psychosis status quo.

Margaret Mead was right when she said: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

She still is.

Thanks again, Dr. Mikos. It remains a pleasure to be on the side of justice and mercy with you in this seemingly never ending war on this plant.

Bernie Ellis on August 20th, 2019 at 6:40 am

No one should be satisfied with the regulatory quagmire that has resulted from the unresolved tension between state reforms and federal law.

Adam Haupt on August 29th, 2019 at 6:18 pm

But creating an exemption for legal cannabis states under the CSA wouldn’t fix all of the problems that federal prohibition is created, which is why ABA also made a scheduling recommendation.

Loren Baker on August 29th, 2019 at 6:23 pm