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We have an extended historical past right here on the Canna Law Blog of analyzing the strikes of the federal authorities, and particularly the Department of Justice (DOJ), relating to federal enforcement of the federal Controlled Substances Act (CSA). Over the years, we actually centered on the appearing U.S. Attorney General and the way they deal with state-legal hashish from the highest down.

It looks as if, for many years now, the DOJ has achieved an attention-grabbing authorized and political dance with state-legal hashish. And it seems that this odd authorized tango could proceed below President-elect Joe Biden’s pick for U.S. Attorney General, Merrick Garland, who’s the previous Chief Judge of the U.S. Court of Appeals for the D.C. Circuit and former U.S. Supreme Court Justice nominee below former President Obama.

Now, it’s possible you’ll be questioning why I’m even involved about Judge Garland and the DOJ when the Democrats simply flipped the Senate after the Georgia Senate run-offs–we now have a Democrat within the White House and a Democrat-controlled Congress. This mixture would appear to ensure the passage of the MORE Act, which might very seemingly have in any other case died on the Senate ground with Republicans as the bulk. The Dems additionally made it clear of their 2020 platform that they might get behind decriminalizing hashish possession, re-scheduling hashish on the CSA to get it off of Schedule I, and legalizing medical hashish.  And now Majority Leader Chuck Schumer stated again in October of final yr that if the Democrats took the Senate, hashish legalization can be a major priority.

The cause why Judge Garland and the DOJ nonetheless matter is as a result of the MORE Act isn’t assured to cross regardless of Democratic management of the White House and Congress the place, for years now, average Democrats have been notoriously ambiguous concerning the remedy of hashish legalization. President-elect Biden additionally stops in need of any sort of endorsement of outight legalizing hashish for non-medical functions (if you happen to recall, we gave him a grade of “D” when evaluating then Presidential candidates and their stance on hashish). And with the MORE Act, itself, it actually looks as if Democrats simply need hashish off of Schedule I of the CSA with out way more element about its regulation, taxation, and authorities oversight, which can even delay the passage of the MORE Act the place these essential particulars will now seemingly must be sussed out if the Act actually stands an opportunity of passing.

Further, with 2022 midterm elections on the horizon, the Democrats don’t have very lengthy to behave if they honestly need hashish legalization and a Republican minority within the Senate might fillibuster any legalization effort accordingly. Basically, the MORE Act isn’t a achieved deal by any means, which sadly means the highest prosecutor on the DOJ nonetheless issues for state-legal hashish companies no less than for the subsequent couple of years.

The DOJ first opined on its enforcement priorities again in 2009 with the Ogden memo (Ogden was Deputy Attorney General on the time), which principally said that if a medical hashish operator was in clear and unambiguous compliance with relevant state medical hashish legal guidelines, they might not be a high enforcement precedence for the DOJ. Then, in 2011, the first Cole Memo (sure, that Cole) primarily retracted the Ogden memo, and the DOJ bought very energetic with prosecuting state-sanctioned medical hashish companies.

Photo by Chip Somodevilla/Getty Images

Fast ahead to 2013, and Cole gave us the well-known Cole Memo with eight particular enforcement priorities the DOJ was purported to observe in states with state-legal hashish. That memo (and all different DOJ steerage on hashish enforcement) was rescinded in January 2018 by then U.S. Attorney General Jeff Sessions and it was all changed with a one page memo that principally indicated that U.S. Prosecutors ought to implement the CSA according to the priorities of their very own districts.

RELATED: Marijuana Could Easily Be Rescheduled With Biden’s Health Secretary

Before present U.S. Attorney General William Barr was appointed to the place, he testified earlier than Congress that, whereas he wasn’t in love with how the federal authorities was dealing with state-legal hashish, he and the DOJ would adhere to the 2013 Cole Memo enforcement rules, which they stunning a lot have. That brings us now to Judge Garland, Biden’s U.S. Attorney General nominee.

The solely official, current court docket file we’ve relating to Judge Garland and hashish comes from Americans for Safe Access, et al. v. the Drug Enforcement Administration. 

In that case, the Drug Enforcement Administration (DEA) rejected a 2002 petition by the Coalition to Reschedule Cannabis to reschedule hashish from Schedule I to a Schedule III, IV, or V drug below the CSA, which such rescheduling requires “a currently accepted medical use in treatment in the United States” dictated by five-part analysis utilized by the DEA:“(1) The drug’s chemistry must be known and reproducible; (2) There must be adequate safety studies; (3) There must be adequate and well-controlled studies proving efficacy; (4) The drug must be accepted by qualified experts; and (5) The scientific evidence must be widely available.”

RELATED: Why A Biden-Appointed, Pro-Cannabis Attorney General Is Important For Weed Reform

The DEA rejected that petition discovering that “[t]here is no currently accepted medical use for marijuana in the United States,” and that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.” The ASA then appealed the DEA’s rejection to the D.C. Circuit Court (Judge Garland was on the three-judge panel that heard the enchantment), arguing that the DEA’s resolution was arbitrary and capricious.

The Court held that the DEA’s denial was neither arbitrary nor capricious the place no “currently accepted medical use” for hashish exists as a result of such use requires “adequate and well-controlled studies proving efficacy,” and there’s “substantial evidence [supporting the DEA’s] determination that such studies did not exist.

RELATED: How Could Joe Biden’s Administration Legalize Marijuana?

While it may seem illuminating, the foregoing case doesn’t necessarily matter that much for how Judge Garland will treat state-legal cannabis as U.S. Attorney General where that role is wildly different than acting as a U.S. Circuit Court Judge. The DOJ’s mission is “to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans”.

The DOJ will not be tasked with deciphering federal legal guidelines. At the identical time, the U.S. Attorney General has the authority to spur the re-scheduling of hashish, and the U.S. Attorney General has large latitude relating to the quantity of enforcement and figuring out enforcement priories (see the second Cole Memo) due to inherent prosecutorial discretion, however they can not change the legislation or interpret it on their very own whims or politics.

RELATED: Why The Federal Government Doesn’t Need To Legalize Marijuana

The fact is that nobody can say but how Judge Garland will deal with state-legal hashish whereas hashish stays unlawful below the CSA, and we gained’t know his official angle in direction of it (appearing as U.S. Attorney General) till he reaches affirmation hearings the place, hopefully, the inquiring Senators will ask the laborious questions on hashish enforcement if Congress fails to realize hashish legalization. So, remember to keep tuned.

Hilary Bricken is a accomplice at Harris Bricken. This story was originally published on the Canna Law Blog and reposted with permission.

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