President Biden could decriminalize marijuana and expunge marijuana convictions — fulfilling key campaign promises — without waiting for Congress.
Marijuana remains a Schedule I drug—the most restrictive category, which includes drugs like heroin—under the Controlled Substances Act. That continues to be used by many states to justify the criminalization of people, disproportionately Black and Brown communities, over cannabis. It also creates research barriers that have inhibited scientists from fully exploring the range of therapeutic benefits and health risks of marijuana.
Experts say that means full descheduling — completely removing marijuana from the CSA and treating it like alcohol or tobacco — might not be achievable through the administrative process. Under federal law, there’s a level of deference to international treaties. In essence, the attorney general is bound to follow international obligations—and marijuana does remain controlled under those agreements.
But there are real steps that can be taken by the administration to reclassify marijuana:
Biden could strongly recommend that either the Attorney General or the head of Health and Human Services submit a petition to initiate the rescheduling process. Rescheduling is clearly and statutorily allowable under our laws through an established, administrative process.
But it would mean that marijuana would still fall under one of five controlled substances schedules. It might help facilitate research by making it easier for scientists to access cannabis for study purposes, but it still wouldn’t be legalized per se.
In the interim, Biden isn’t powerless. He can fundamentally change the course of how this country has approached marijuana. He could use his executive authority to grant mass pardons to people with federal cannabis convictions on their records.
This wouldn’t be without precedent, either. Presidents Gerald Ford and Jimmy Carter in the 1970s granted mass pardons to Americans who avoided the draft for the Vietnam War. A blanket pardon for marijuana offenses is possible, too. In fact, a recent report from the Congressional Research Service concluded that Biden could even pardon people who’ve been charged but not yet convicted.
Marijuana legalization is an incredibly popular policy among Americans, with growing majorities backing the reform regardless of party identity. More than 40 percent of Americans now live in a state where cannabis is legal for adult use.
The president says he supports ending cannabis criminalization and letting states set their own policies. He doesn’t want to see people incarcerated over non-violent marijuana offenses.
But while he’s yet to take action, experts and congressional researchers agree: Biden’s hands aren’t tied and he can take immediate steps to provide relief to citizens impacted by prohibition. Mass clemency. Pushing for administrative rulemaking. If he could even just communicate to Congress that this is a priority, that could go a long way toward advancing legislative reform.
So what’s stopping him?
