What does Biden’s attorney general pick think about legalization? Not much—but it may not matter

With the Democrats gaining control of the US Senate in last night’s historic Georgia run-off election, President-elect Joe Biden wasted no time this morning letting word leak that US Appeals Court Judge Merrick Garland will be his pick for US Attorney General.

Merrick Garland as attorney general: Good or bad for cannabis?

If that name sounds familiar, it’s most likely because Garland was President Obama’s pick to fill a vacant Supreme Court seat in 2016.

Famously, Garland never got a confirmation hearing because then-Senate Majority Leader Mitch McConnell blocked his nomination until the end of Obama’s term. The empty seat was eventually filled by Trump nominee Neil Gorsuch in 2017.

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But now McConnell’s days as majority leader look to be numbered—if the Georgia returns hold true—and incoming President Biden seems ready to tap Garland to serve as the nation’s highest ranking law enforcement official. If confirmed—presumably a formality in a Senate expected to be controlled by Democrats—that would put Garland in charge of shaping federal cannabis policy, at least when it comes to enforcement, at a time when the nation stands at a crossroads. Roughly half the country now lives under legalization, and the other half lives under prohibition.

Support for legalization nationwide has never been higher. The latest Pew and Gallup polls consistently show more than two-thirds of Americans support marijuana legalization for all adults.

With Democrats now holding majorities in both houses of Congress, passage of the MORE Act moves from far-off hope to actual possibility.

President Elect Biden remains at least officially opposed to legalization—making him an outlier among Democrats—though it’s unclear if he’d veto popular legislation passed by his own party.

Legalization not really on his radar

So where does that leave the presumptive attorney general?

Throughout his career as a judge and federal prosecutor, Merrick Garland has had very little to say about cannabis.

In a 2012 case, Garland sided with the DEA on marijuana scheduling. But that was before state adult-use legalization was even a thing.

His most direct comments on the subject date back to 2012, during a federal hearing on the scheduling of cannabis. In that hearing, cannabis advocates sought to challenge the federal government’s     classification of cannabis as a Schedule 1 drug—the most restrictive category, reserved for “drugs of abuse” with no proven medical value.

Appearing before Merrick Garland two other federal judges, Joe Elford, counsel for medical cannabis advocacy group Americans for Safe Access, argued that the federal government had “failed to weigh the evidence” in considering the plant’s medicinal value, and that the DEA’s “bias” against cannabis was the only way the “federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine and opium.”

At one point in the proceedings, Garland asked a question that seemed to give the DEA the benefit of the doubt, as reported at the time by the LA Times.

“Don’t we have to defer to their judgment” on what the medical studies show? asked Judge Merrick Garland. “We’re not scientists. They are.”

Ultimately, the three-judge panel denied the petitioners’ challenge to the DEA, killing off one of many attempts over the last few decades to use the federal courts to challenge the scheduling of cannabis in the Controlled Substances Act of 1970.

Garland didn’t write the decision, but he did side with the majority in ruling that the DEA’s scheduling of cannabis was not “arbitrary and capricious… because DEA regulations define ‘currently accepted medical use’ to require, among other things, ‘adequate and well-controlled studies proving efficacy.’”

Eight years was a lifetime ago in cannabis years

Before drawing any strong conclusions about Garland’s approach to cannabis based on the above, however, it’s important to note we’re talking about a single, perhaps rhetorical question posed eight years ago.

When it comes to cannabis policy, that’s practically ancient history. Garland heard the 2012 case prior to the election of Nov. 2012, when Colorado and Washington shocked the political world by voting to legalize the adult use of marijuana.

Does the attorney general even matter now?

More importantly, as the nation shifts from prohibition to legalization as the prevailing approach to cannabis, the role of law enforcement generally and the attorney general specifically continues to diminish.

Jeff Sessions came in as a marijuana-hating attorney general. He did almost nothing to stop the growth of legalization.

When President Trump first took office in 2017 and appointed longtime cannabis foe Jeff Sessions as his attorney general, the cannabis industry and community reacted in horror. And in fact Sessions spent much of his time in office speaking out against marijuana legalization.

But while the Trump administration remained generally hostile to reform, a feared federal crackdown against state-licensed cannabis companies never materialized. Sessions did revoke the Cole Memo, the Obama-era policy statement that offered guidance to states that chose to legalize and regulate marijuana. But that seemed to have little real effect.

The most egregious actions were taken by Sessions’ successor, William Barr, who instigated a number of unwarranted harassment investigations of legal cannabis companies on antitrust grounds.

Prior to that, under President Obama, US Attorneys (who operate under the authority of the attorney general) directed individual raids and other enforcement actions against cannabis businesses operating in legal states, while simultaneously allowing the industry to grow and legalization to spread.

The power is all in the Senate now

Looking forward from here, it’s hard to imagine the attorney general and the Department of Justice under a Democratic President, with a Democratic Congress, proactively going after either individual state-legal consumers, companies, or the state officials who allow the legal, regulated use of medical or adult-use cannabis.

In fact, far more interesting is the prospect of de-escalating the federal War on Marijuana that’s been waged out of Washington, D.C., since the passage of the Marihuana Tax Act in 1937.

In the coming days and weeks Merrick Garland will no doubt be pushed to weigh in on federal legalization, among many other issues. But in the meantime, the real action may be in the Senate, which in its next session could consider a version of federal legalization—the MORE Act—that passed the House by a wide margin late last year.

David Bienenstock's Bio Image

David Bienenstock

Veteran cannabis journalist David Bienenstock is the author of “How to Smoke Pot (Properly): A Highbrow Guide to Getting High” (2016 – Penguin/Random House), and the co-host and co-creator of the podcast “Great Moments in Weed History with Abdullah and Bean.” Follow him on Twitter @pot_handbook.

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