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Politics and The Legalization of Marijuana

Last Updated: February 24, 2022By Jason Levin


What’s going on with Trump and Biden, in terms of how they will impact marijuana legislation? Is there a chance that one of them will finally make weed federally legal? Once upon a time, it was apt to describe the speed of marijuana legalization as glacial, but since the icecaps are now melting like soft-serve on pavement, we’re going to have to find another simile. Maybe it would be more accurate to say that marijuana legislation lingers indeterminately in the air like Covid-19 in a midsummer sneeze.

It’s understandable if the legal status of weed isn’t the first thing on your radar right now, and as our country’s confrontation with both Covid-19 and the collective trauma of racial violence suggests, we have bigger fish to fry. And between environmental devastation, bleach-drinking Karens, and Tiger King, there’s literally a million other side show pieces to marvel at. The insanity is enough to turn all of us into medicinal marijuana smokers.

This is why, as easy as it is to get distracted by the imminent apocalypse surrounding us, it’s worth paying attention to developing legislation that will determine the possibility of a federally legalized marijuana industry. Moreover, it’s important to understand why marijuana legalization is fundamentally a human rights issue, and how it is inextricably linked to the immediate struggles we face today.

And here enters perhaps the greatest upcoming freakshow of all: the presidential election in November. Where do Donald Trump and Joe Biden stand on marijuana legalization? Or on marijuana legislation at all? What we really mean is: How does your favorite candidate plan to keep marijuana legalization in legislative limbo? These are important questions to ask, because we’re going to need a lot more weed if we want to survive the rest of 2020.  If you’re able to take a breather from the fiery sky falling all around us, let’s take a moment to consider the differences between the Trump and Biden campaigns, and what their positions mean to the cannabis industry.  

Whichever stance or non-stance each candidate takes, the topic of marijuana legalization can’t be separated from its political and social context. This is why, in order to really get a full picture of the political future of marijuana, we need to look at the bigger picture and address the following questions:

Here’s the TLDR version of Trump v Biden marijuana positions, sans context: Neither candidate will federally legalize cannabis. While Biden only wants to decriminalize and not federally legalize, Trump wants to neither decriminalize or legalize. Of course, it’s a little more complicated than that.  Regardless, as chosen representatives of their respective parties that we all love and trust, it’s their civic duty to spout some combination of promises that could sound as vaguely controversial as they do non-committal. Both have found their political safe-space, in their own ways.

In Trump’s political theater, he must ease the contradiction between state’s rights and the conservative moral imperative against cannabis, while making a show of both (although the image of the conservative pearl-clutcher is rapidly changing). Biden’s strategy so far seems geared toward easing the perceived anxieties of flocking former Trump voters, while riding on the “anyone but Trump” leeway that disappointed, disenchanted democrat voters are affording him. When taken at face value, the immediate future of weed legalization might seem frustratingly static.

It’s not like marijuana’s a new or taboo subject for the Presidential office. And yet, for as long as the battle for marijuana legalization has been, it’s not unreasonable to wonder:

Does the President Have the Authority to Legalize Marijuana?

Yes. While our expectations of life are drastically narrowing, the one thing that is weirdly, easily possible is the federal legalization of weed. The president has executive authority to  deschedule marijuana from its current schedule one status. Additionally, the attorney general and Health and Human Services secretary can recommend a re-evaluation of the DEA’s classification of marijuana. At the moment, cannabis shares the same status as crack and heroin. If the executive branch descheduled marijuana, it could be treated similarly to alcohol and tobacco. Such a move would open up the weed industry to federal regulation, which in turn would appropriately legitimize the cannabis industry. However, just because marijuana can be easily legalized by executive order, this doesn’t mean that it’s likely.

Related Article:  Is Selling Your Homegrown Weed Legal?

Congress and Marijuana Legislation

Because Congress can’t order weed into legal status like the President can, meaningful legislation often turns up in budgetary contexts. For example, SAFE is a proposal that would allow marijuana businesses to utilize banks, regardless of weed’s federal status. Other important ways of protecting marijuana freedoms involve budget proposals that bar the DOJ from funding efforts to federally prosecute states. They can also vote to move funds toward efforts that support cannabis legalization: in 2021, Congress has proposed funding a framework that would regulate CBD products.

With enough support, yes. While the presidential candidates remain strategically quiet until November, there’s far more interesting things happening in Congress. STATES, led by Cory Gardner and Elizabeth Warren, is one of the more promising efforts coming out of Congress. The bill (Strengthening Tenth Amendment Through Entrusting States), would prevent the feds from prosecuting states with legal weed industries. This doesn’t actually legalize marijuana, but it at least offers some valuable protection.

Unfortunately, efforts to legalize marijuana through congressional legislation is rarely straightforward. In the US, any attempt at bringing the weed industry into full legitimacy emerges through a series of incredibly complex congressional bills, addendums, and financial proposals. As exciting as these propositions may be, they still have to twist and turn their way through the House of Representatives, only to get killed or tabled indefinitely before reaching the Senate floor. You can thank Mitch McConnell for that.

All of the bureaucracy and red tape that stifles legislative reforms would be totally bypassed if marijuana were to be made federally legal. So, until we elect a president willing to legalize marijuana, our only hope in Congress is to vote the right people in and the wrong people out.

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What is Joe Biden’s Stance on Marijuana Legalization?

First of all, credit must be given where credit is due: Biden’s proposal to federally decriminalize weed, if implemented, would be the most progressive action towards marijuana legislative reform that any president has ever pursued or achieved. However, Biden’s campaign is re-soundly clear that it will NOT pursue legalization, and that makes a world of difference. If there were any confusion about where the Biden campaign stands on the issue, the outcome of the recent, Bernie Sanders-led task force only reinforces Biden’s opposition to marijuana legalization. Joe Biden wholly ignored Sanders’ recommendation to immediately legalize cannabis, and instead doubled-down on his intent to decriminalize. This seems like a disappointing snub to the massive block of would-be Bernie supporters, a population whom Biden desperately needs in order to win. This is also a group of people that are looking for anything, anything at all to make them like this guy. Why Biden would refuse to give even the tiniest nod to progressive Democrats is a mystery.

Beyond the recent task force, Biden’s said very little about marijuana. The most he’s ever articulated on the subject came out in a lack-luster February interview, during which he explicitly stated that he wasn’t willing to legalize marijuana, due to a lack of “science” on the issue. For whatever reason, Biden is still telling the public that he’s unconvinced of what everyone and their grandma already knows: the fact that marijuana therapy is and always will be a priceless form of medical treatment, and that cannabis does not pose the same dangers as other Schedule One drugs.  

But decriminalization is still meaningful, and vitally so. And, in spite of the usual political banter amidst a backdrop of barely-moving policy, Biden’s seemingly paltry proposals would give invaluable protections to patients, consumers, and the general cannabis industry. He intends to use this executive authority to reduce marijuana crimes from potential felonies to merely ticket-able offenses. This would be a huge step forward in reforming our racially and economically biased judicial system. Furthermore, he proposes the immediate expungement of all previous marijuana offences from peoples’ records, and the release of all prisoners held for marijuana-related crimes. Such a move would be unprecedented at the federal level.

Even so, Biden’s suggestion to decriminalize, deschedule, and divert drug offenses to treatment-based models are not enough to rectify the problems inherent to federal prohibition, and its attractive concessions may bury the promise of marijuana legalization even deeper than it already is. The valley between legalization and decriminalization is irreconcilably huge.

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Why Does Legalization Matter? Why is decriminalization not enough?

The main reason why decriminalization fails is because it reasserts marijuana’s status as an illegal substance, and it buries any possibility of legal usage under the strict control of the federal government. If marijuana were moved to a schedule II, cannabis would fall into the same category as certain prescription drugs. Sounds good, right? But all this would do is dictate that the only way for patients and consumers to access marijuana is through Big Pharma. This does nothing for patients, nothing to protect individuals from the justice system, and it would award billions of dollars to private drug companies.

Decriminalization, as opposed to legalization, punishes the cannabis industry and patients. Because marijuana isn’t federally legalized, state-legal cannabis businesses have no banking access. This means that marijuana businesses must deal exclusively in cash. Being forced into a cash-only industry severely hinders businesses from processing payments, and much worse, it leaves them vulnerable to crime. During many of the recent riots, dispensaries all over California were systematically looted, amounting to millions of dollars in losses. When banks are not allowed to finance with marijuana-related industries, small businesses must struggle harder to draw in much needed income in order to stay afloat. There’s plenty of expenses for dispensaries--these include zoning, licensing, and taxes, to name a few. Allowing dispensaries access to legitimate financing practices allows them to better provide their communities with a vital resource, to both recreational and medicinal marijuana. To patients, it ensures access to medicinal marijuana treatment. And for recreational users, legitimization of dispensaries is important because they provide a legal, safe way to acquire marijuana.

Marijuana Legalization is a Human Rights Issue

Decriminalizing weed might mean that the penalties for possession are lighter, but it does nothing to address structural issues inherent to marijuana legislation, and drug policies in general. Even though white people consume drugs at the same rate as African Americans, African Americans are routinely charged and penalized for drug crimes, and with much harsher penalties than for white people. This shouldn’t be news to anyone, so therefore it should be unacceptable to support legislation that gives police a reason to stop, arrest, assault, harass, or otherwise cause serious harm to people of color. Decriminalization does not remove the traumatizing fear associated with police interaction.

Furthermore, decriminalization puts parolees and people under probation at risk. Under decriminalization, marijuana possession would be reduced to a simple ticket citation, which sounds great. However, a simple ticket for someone on parole could land them in prison for years. It is cruel and unusual punishment to lock someone away (for potentially decades) for what would normally be a simple fine for anyone else. A ticket is not enough to ruin a life over. Felons cannot speak for themselves; they cannot vote in favor of their own rights in this election, or any election.  It’s our responsibility to speak for those who cannot.

Decriminalization also puts up an unnecessary barrier to medical treatment for people on parole and probation, and it’s a major violation of privacy. In order for a patient who is on parole to access necessary medicinal marijuana treatment, she must first go through yet another bureaucratic hurdle, and must request from the court that medicinal marijuana be allowed as part of her conditions of parole. In any other scenario, a patient would never have to disclose private medical information in order to safely access treatment, much less surrender their healthcare directives to anyone other than their doctor. Federal legalization of marijuana is the only legislative approach that allows human beings true dignity.


What is Trump’s Stance on Marijuana Legalization?

Donald Trump supports criminalization of all cannabis industries. Democrats might be disappointed with Biden’s out-of-step refusal to legalize, but Donald Trump remains diametrically opposed to any form of progressive marijuana legislation. Not only is Trump’s campaign opposed to federally legalizing cannabis, he has attacked the rights of medical marijuana patients, and continues to actively criminalize all forms of marijuana usage, including state-legal industries.

Sure, he has uttered at least one phrase that didn’t explicitly call for the criminalization of marijuana, but you’d be really reaching to interpret anything he’s said so far into a pro-legalization platform. At this point, the most we have on Trump’s marijuana stance is just a passing comment he made to a journalist; the question itself actually wasn’t exclusively about legalizing marijuana, but instead, he was asked if he was going to support a bill that would protect states with legalized medical marijuana industries from encroachment by the federal government. To this he responded, “Yes, I will probably sign that.” And there you have it, Trump’s current stance on marijuana policy for 2020. This brief nod, contradictory to his history of attacking marijuana protections, appears to be a strategic way of remaining as neutral as possible until the debates later this fall.  

While his campaign stance is pretty much nil, his record throughout his presidency speaks loud and clear. Trump has aggressively attacked the rights of states that legally protect the cannabis industry. How can we forget Jeff Sessions, the attorney general who explicitly threatened to prosecute states with legal marijuana policies? As president, Trump chose to uphold the federal prohibition of marijuana, and he also repealed the Cole Memorandum, a directive that instructed federal prosecutors against legally threatening states with existing marijuana industries. Maybe he did it out of spite for an Obama-instituted directive, or maybe he did it as an attempt to consolidate executive power, or perhaps because he genuinely wants marijuana criminalized at all costs. Whatever the reason, Trump has repeatedly removed protections that previously prevented the federal government from prosecuting states that already have legalized marijuana industries. What’s more, he explicitly declared that he would target states with not just recreational policies, but specifically medical marijuana industries. His attempt to criminalize medical patients and industries alike has been consistent since the beginning of his term. In the past four years, we may have seen a couple of cursory nods to states’ rights, but he has taken any action possible to federally prosecute states with legal cannabis industries.

Trump’s silence and the tiny bit of speculation surrounding it might suggest a strategic attempt to hold on to the favor of liberty-driven, conservative libertarians for a little while longer, but there is nothing in Trump’s record of actions that suggests he is anything but dedicated to full criminalization, via federal authority. While Biden’s apprehension still leaves a possibility for wiggle room in the future, the evidence we have so far about Trump’s stance suggests that he actively supports criminalization, and, by default, restricting patients’ access to medicinal marijuana therapy.



Both Trump and Biden are holding off on speaking substantively on marijuana legalization, most likely because they see this strategy as a way to maintain the support of either traditionally conservative voters, without pigeonholing themselves in any category. This represents a classic strategy of letting the other candidate be the first to put himself on the gauntlet of public opinion. Both candidates have a lot to lose in this election, so it makes sense that both campaigns are taking the route of caution. Silence on the issue will allow Trump to avoid putting himself on the line, and it allows the Biden campaign to remain as neutral--and hence electable--as possible.

It’s bizarre that the strategies of both campaigns thus far completely ignore the fact that the majority of Americans are in favor of legalizing weed, across both parties. Close to 80 percent of Americans are in favor of full legalization, not just decriminalization of weed.  And then there’s the assumption that conservatives are unanimously opposed to legalizing maijuana, or legislative reform, but that simply isn’t true-the majority of Republican voters support full legalization. This may surprise some conservatives, but it is philosophically in-tune with a population that has traditionally valued itself as the defender of individual liberties and state’s rights. It’s a mistake to assume that Conservatives feel threatened by legal marijuana usage. After all, libertarians view drug legalization as a necessary right to citizen autonomy/liberty.

While there is always hope, both campaigns indicate that marijuana might not become federally legalized in the immediate future. As disappointing as this is, the good news is that there’s always Kanye.

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Frequently Asked Questions

Q: Does Donald Trump support the legalization of marijuana?

No, He doesn't support the legalization of marijuana.

Q: Will Joe Biden Legalize Marijuana if he becomes the President?

Biden’s campaign is clear that it will NOT pursue legalization of Marijuana

Q: Can Congress make weed legal?

No, Congress can’t order weed into legal status only the President can with an executive order.


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