On Pot Legalization, Biden Offers Only Inaction

The new administration does not appear to be interested in addressing the conflict between state and federal marijuana laws.


Attorney General Merrick Garland says he does not plan to interfere with state legalization of marijuana. On that score, Joe Biden's administration is indistinguishable from Donald Trump's.

"It does not seem to me a useful use of limited resources that we have to be pursuing prosecutions in states that have legalized and that are regulating the use of marijuana, either medically or otherwise," Garland said during his confirmation hearing in February. That stance is essentially the same as the policy during Barack Obama's administration, when Deputy Attorney General James Cole urged federal prosecutors to deprioritize cases against state-legal marijuana businesses.

Trump's first attorney general, Jeff Sessions, rescinded that 2013 memo in 2018. But no crackdown followed, and Sessions' successor, William Barr, did not even try to instigate one.

"I'm not going to go after companies that have relied on the Cole memorandum," Barr said in 2019. "My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole memorandum. Investments have been made, so there [has] been reliance on it. I don't think it's appropriate to upset those interests."

Barr also said the conflict between state and federal marijuana laws, which exposes state-licensed cannabis suppliers to the risk of federal prosecution and forfeiture while complicating their business in numerous ways, is "untenable." And while Barr made it clear that he was no fan of legalization, he said Congress should change federal law if it wants the states to be free to set their own marijuana policies.

Biden has not endorsed any such change, despite his promise to "leave decisions regarding legalization for recreational use up to the states." Instead, the president favors modest reforms such as tweaking marijuana's classification under the Controlled Substances Act and decriminalizing low-level marijuana possession, which represents a tiny share of federal drug cases.

Reformers hoped that Vice President Kamala Harris, who as a senator supported repealing the federal ban on marijuana, might nudge Biden to be more ambitious. But if anything, the influence seems to be flowing in the opposite direction.

As Biden's running mate, Harris said "we will decriminalize the use of marijuana and automatically expunge all marijuana use convictions." In March, Bloomberg, citing an unnamed Harris aide, reported that "Harris's positions are now the same as Biden's."