The overturning of Roe v. Wade, combined with a largely unknown workers’ compensation case presented to the U.S. Supreme Court — for which certiorari was recently denied — reveal the Biden administration’s position on cannabis: The Biden administration doesn’t care about cannabis issues.
Or is it that the Biden administration cares so much about cannabis issues that it will not leave them in the hands of the current judiciary? Or something in the middle?
The Overturning of Roe
Regardless of your opinion on the correctness or wisdom of the Supreme Court’s 1973 decision in Roe v. Wade, the decision to overturn it this June in Dobbs v. Jackson Women’s Health Organization[1] represents a potential sea change in the court’s jurisprudence.
It further represents the current court’s willingness to take strong and decisive opinions on matters of broad political and cultural significance.
Cannabis is certainly one of those issues that sits at the intersection of law and order, popular opinion and individual liberty.
So, what does Roe have to do with the Biden administration’s approach to cannabis? Stay with us: In the words of Andy Dufresne in “The Shawshank Redemption,” if you’ve come this far, maybe you’re willing to come a little further.
Why are you reading about a workers’ compensation case?
Earlier this year, the solicitor general of the U.S. filed a brief in Musta v. Mendota Heights Dental Center, a case challenging the Minnesota Supreme Court’s 2021 ruling that the Controlled Substances Act preempts an order under a Minnesota workers’ compensation law that required an employer to reimburse an employee for the cost of medical marijuana used
to treat a work-related injury.
The solicitor general concluded that the Minnesota Supreme Court’s decision was
correct for the straightforward reason that when a federal law such as the CSA prohibits possession of a particular item, it preempts a state law requiring a private party to subsidize the purchase of that item.
Despite the seemingly clear-cut nature of marijuana’s classification under the CSA, the solicitor general did recognize that medical marijuana law is rapidly evolving, even characterizing it as “a hazy thicket.”
Nevertheless, she appeared to consider Congress’s failure to affirmatively act and amend the CSA to be dispositive, and ignored recent congressional actions that belie preemptive intent.
For example, Congress has consistently passed appropriations riders prohibiting the use of appropriated funds to prevent states, as noted in the solicitor general’s brief, “from implementing their own laws that authorized the use, distribution, possession, or cultivation of medical marijuana.”
The solicitor general dismissed the appropriations issue as merely “a limitation on funding,” not “a repeal of the CSA’s substantive criminal prohibitions.”
The solicitor general was similarly unperturbed by Congress’ decision to narrow the definition of marijuana. Instead, she repeatedly argued that siding with the employee would be tantamount to allowing “state laws compelling third-party reimbursement for federal crimes.”
The court recently denied certiorari, meaning that it will not hear the case at this time.
So what are we to make of this?
We think there are three possible explanations for the solicitor general’s approach, and while they aren’t mutually exclusive, they are all significant in their own ways.
But first, one thing is true: Almost two years into the Biden administration, during which Democrats have enjoyed majorities in the Senate and the House of Representatives, no meaningful cannabis reforms have become law. Nor, in our judgement, is any meaningful reform likely to occur before the midterms, even though there appears to be majority support in both houses of Congress for commonsense reform.
That said, here are the three most likely possibilities we can take away from the latest brief of the solicitor general, who is not the president’s personal lawyer but is tasked with representing the United States’ positions in litigation:
1. The Biden administration does not support meaningful cannabis reform.
Maybe President Joe Biden simply does not support liberalizing federal cannabis policy.
We don’t think this is correct — at least not entirely and unequivocally — but there is evidence for this view in the president’s earlier political life.
Conventional wisdom has it that the Biden administration is generally good for the cannabis industry, but perhaps not as good as, for example, Sen. Bernie Sanders, I-Vt., or Sen. Cory Booker, D-N.J. — or even, depending on who you ask, Vice President Kamala Harris.
But Biden is certainly better than a potential Republican presidential nominee like Florida Gov. Ron DeSantis, former Vice President Mike Pence or a more conservative Republican option — even if one could make the case that the Trump administration essentially continued the hands-off approach of the Obama administration.
But close observers always wondered whether Biden’s history on cannabis issues was an indication that he was, at best, ambivalent. While the Democratic National Committee’s 2016 platform championed a “reasoned pathway to future legalization,” DNC members voted to strike language from the platform regarding legalization in the 2020 platform —
instead focusing on federal recreational decriminalization, legalized medical use, and allowing states to set their own rules and regulations.
The 2020 platform tracked the recommendations made by the Biden-Sanders Unity Task Force organized by former Biden and Sanders, and more broadly reflected the measured approach Biden appears to be taking toward broad-scale recreational legalization.
And for Biden’s personal opinion? He was far from the most pro-cannabis Democrat that ran for president in 2020. During his long tenure in the Senate, he championed several pieces of tough-on-crime legislation.
For example, in 1986, Biden introduced the Comprehensive Narcotics Control Act, which sought to establish a cabinet-level office to coordinate the federal government’s drug enforcement policies, and in 1993, Biden sponsored the Violent Crime Control and Law Enforcement Act, a precursor to the 1994 crime bill.
With this track record, some concluded that a Biden presidency would take a dim view of the cannabis industry.
People can change their minds on issues over time, and politicians are no different. But reasonable people can disagree about whether cannabis reform is an issue that Biden would like his administration to undertake — and, to that end, whether the solicitor general’s recent opinion is a reflection of his reticence to do so.
2. President Biden is an institutionalist protecting federal power.
Maybe the solicitor general’s approach represents the president’s long-held view on the extent of federal power — specifically, that it’s a protection of the authority of the federal government and its singular authority to devise and enforce a national policy on controlled substances.
He has spent nearly his entire adult life as a federal officeholder and has used his various positions to push positions he believes to be good for the American people.
Does that history lead him to the conclusion that the federal CSA’s prohibition on marijuana as a Schedule I narcotic necessarily trumps any state law to the contrary and, by extension, mean that a state — here, Minnesota — cannot reimburse payments, because doing so would constitute a violation of federal law, either by aiding and abetting or perhaps
conspiring to violate the federal CSA?
It’s possible, though unlikely, that his institutionalist bent leads him to that conclusion.
3. The Biden administration is strategically preventing the current court from ruling on an important cannabis issue.
Third, maybe the president has concluded that his opinion on cannabis must yield to the practical reality that bringing the issue in front of the court, as it is presently constituted, would ultimately hurt the cannabis industry, regardless of his personal opinion of the matter.
This is the Roe analogy. Nearly all court observers view the current Supreme Court as a conservative one, and Roe being overturned demonstrates to many the extent to which this court will place a firm thumb on cultural issues that many have viewed as settled.
And, as the thinking among many of these observers goes, if the court is willing to pursue this type of sea change on what they view as settled law, the court may be willing to go even further on an issue such as cannabis that has long existed in a gray area of the law.
Our sense is that this concern is the basis of the solicitor general’s position in the workers’ compensation case, which is that the cannabis industry is allowed to exist under current federal law and enforcement policy.
If the court takes a harsh view of what constitutes aiding and abetting or conspiring to violate the federal CSA, it could be devastating to the industry because it could cause otherwise willing participants in the industry — not only cannabis operators, but all service providers, from banks and real estate companies to insurance companies and public utilities, just to name a few — to reconsider that participation.
If that is a valid concern, then the solicitor general’s approach has the benefit of maintaining the status quo, even if it does not move the industry forward.
Whether you consider it waiving the white flag or a tactical retreat to win the long game, the immediate reality is that cannabis advocates will not get what they want — but at least they may not get what they fear.
What’s next?
One of the most frustrating things to hear from a lawyer is: “I’m not sure.” So we won’t say that, even if it’s true.
The bottom line is that Congress should step in and bring some sense of order to the situation. Congress could change the CSA and render these issues moot, or it could modify other federal rules that would give cannabis operators and service providers more confidence to participate in the industry.
By way of recent example, in July, Sens. Chuck Schumer, D-N.Y., Booker and Ron Wyden, D-Ore., introduced the Cannabis Administration and Opportunity Act. Like the Marijuana Opportunity Reinvestment and Expungement Act, which passed the House earlier this year, the CAOA would decriminalize cannabis on the federal level.
It remains to be seen whether these pieces of legislation will gain any traction, or stall out in Congress.
To bring it back to one of the author’s favorite movies: Remember, hope is a good thing. Maybe the best of things. We hope to be updating you with more definitive news in the future.
Republished with permission. This article, “Dobbs, Workers’ Comp. Brief Hint At Biden’s Cannabis Stance,” was published by Law360 on August 4, 2022.
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