For the First Time Ever, the House Votes To Repeal the Federal Ban on Marijuana

The bill is unlikely to make headway in the Senate, but it could nudge President-elect Joe Biden toward more ambitious reforms.

Today, for the first time ever, the House of Representatives voted to repeal the federal ban on marijuana, which was originally imposed 83 years ago in the guise of a revenue measure. The vote was 228 to 164, with five Republicans—including Matt Gaetz of Florida, who cosponsored the bill—joining 222 Democrats and Rep. Justin Amash (L–Mich.) in supporting the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which would remove cannabis from the Controlled Substances Act (CSA) and eliminate federal criminal penalties for cultivation, distribution, and possession.

The MORE Act, which was introduced by House Judiciary Committee Chairman Jerrold Nadler (D–N.Y.), is unlikely to get a friendly reception in the Republican-controlled Senate, where Majority Leader Mitch McConnell (R–Ky.) has supported industrial hemp but opposed legalization of psychoactive cannabis. Today's vote is still a milestone in the fight against marijuana prohibition, and the House's endorsement of federal legalization may nudge President-elect Joe Biden to support less sweeping reforms that nevertheless go further than anything he has advocated so far. Vice President-elect Kamala Harris, who sponsored the Senate version of the MORE Act, could have a positive influence in that respect.

In addition to removing marijuana from the CSA's schedules of controlled substances, the MORE Act would require automatic expungement of federal marijuana convictions. Currently there is no expungement process at all for federal crimes, and state expungement typically requires petitions by individual offenders. The bill would require judges to vacate the sentences of people currently serving time for federal marijuana offenses when they request a hearing. It also would prohibit the denial of federal public benefits because of convictions involving cannabis consumption and eliminate immigration disabilities based on marijuana-related conduct.

Less promisingly, the bill would impose a 5 percent federal tax on cannabis products, rising to 6 percent after two years, 7 percent after three years, and 8 percent after four years. The revenue would be assigned to drug treatment, "services for individuals adversely impacted by the War on Drugs," loans for marijuana businesses owned by "socially and economically disadvantaged individuals," and grants aimed at reducing "barriers to cannabis licensing and employment for individuals adversely impacted by the War on Drugs."

Gaetz and Amash proposed an unsuccessful amendment that would have eliminated those "social equity" provisions. Four Republicans—Reps. Tom McClintock (Calif.), Don Young (Alaska), Denver Riggleman (Va.), and Brian Mast (Fla.)—joined Gaetz and Amash in voting for the final bill.

Thirty-six states and the District of Columbia have legalized marijuana for medical use; 15 states and D.C. have taken the further step of legalizing recreational use. The latter jurisdictions account for roughly a third of the U.S. population and now include two deep-red states, Montana and South Dakota, which joined Arizona and New Jersey in legalizing recreational marijuana by ballot initiative last month. According to the latest Gallup poll, 68 percent of Americans, including 83 percent of Democrats and nearly half of Republicans, favor legalization. Yet as Rep. Earl Blumenauer (D–Ore.), co-chair of the Congressional Cannabis Caucus, notes, marijuana "remains criminalized at the federal level, destroying hundreds of thousands of lives and wasting billions of dollars on the selective enforcement of an outdated and harmful system."

The MORE Act would resolve the conflict between state and federal marijuana laws, which casts a dark shadow over the burgeoning cannabis industry. State-licensed marijuana businesses engage in federal felonies every day, which exposes them to the ongoing risk of prosecution and asset forfeiture, mitigated only by the Justice Department's enforcement discretion and an annual congressional spending rider that protects medical marijuana providers. That legal peril makes basic business functions such as banking and paying taxes needlessly risky, difficult, costly, and complicated.

During his confirmation hearing last year, Attorney General William Barr rightly described this situation as "untenable." Barr, an old-fashioned drug warrior, made it clear that he is not a fan of legalization. "We either should have a federal law that prohibits marijuana everywhere, which I would support myself, because I think it's a mistake to back off from marijuana," he said, or "if we want a federal approach, if we want states to have their own laws, let's get there, and let's get there the right way." In response to a question from Sen. Thom Tillis (R–N.C.), Barr clarified that he meant Congress should change federal law if it wants the states free to set their own marijuana policies.

Descheduling marijuana, as the MORE Act would do, is the most straightforward way to accomplish that. It is consistent with the federalism typically espoused by Republican members of Congress, with Biden's support of medical marijuana, and with his promise to "leave decisions regarding legalization for recreational use up to the states." Yet Biden, a supposedly reformed drug warrior, continues to support federal marijuana prohibition, unlike most of the candidates he beat for the Democratic presidential nomination, including Harris. He favors only minor marijuana reforms that would not address the contradiction between state laws that treat cannabis suppliers as legitimate businesses and federal laws that treat them as criminal enterprises.

"I have been waiting for this historic moment for a long time," Blumenauer said. "It is happening today because it has been demanded by the voters, by facts, and by the momentum behind this issue. This is an opportunity to strike a blow against the failed war on drugs, [which] has literally destroyed hundreds of thousands of young Black lives."

Aaron Smith, CEO of the National Cannabis Industry Association, likewise emphasized the significance of passing the bill, even if it is not taken up by the Senate. "The symbolic and historical importance of the MORE Act passing in the House cannot be overstated," he said. "This vote stands as a rebuke of failed and harmful prohibition policies, and represents a growing understanding of their racially and economically disparate impacts. Americans are increasingly ready to see cannabis legal for adults and sensibly regulated, which they showed through their representatives today and at the ballot box last month."

[This post has been revised to correct the number of states that allow medical use of marijuana.]