There’s plenty a President Joe Biden could do to make marijuana less illegal, but the president can’t legalize marijuana all by himself.
Barring some unforeseen and highly unlikely development, Joe Biden will be sworn in as the next president on January 20. For at least the first half of his first term, he is almost certain to oversee a split government, with Republicans still in control of the U.S. Senate as well as the Supreme Court. And so as the COVID-19 pandemic spirals further out of control every day, as Donald Trump refuses to concede or even acknowledge the election result, and as profound concerns about the nature and future of our democracy remain, the question is being asked: Can a President Biden legalize marijuana, all by himself, without Congress? The short answer, as legal scholars have said many times over the past decade, is yes—or, well, sort of. The president can make cannabis less illegal, with many caveats. This academic ambiguity aside, a better question to ask might be: Will Joe Biden use political capital to decide an issue, that he has not embraced, that the courts have repeatedly ruled is Congress’s business anyway? Framed this way, the answer is almost certainly no. President Joe Biden will not legalize marijuana, sorry! And that is exactly what the marijuana industry wants to hear. The legalization-by-fiat options available to any American president would create more problems that it would solve. First, legal scholars seem to mostly agree that the president can use the power of the executive branch to reschedule cannabis. The Controlled Substances Act currently classifies marijuana as a Schedule I drug—more addictive than heroin! Less medical value than cocaine! No medical value, a high potential for abuse, and illegal in all circumstances. (You will notice this hasn’t stopped states from legalizing cannabis, nor has it stopped recreational marijuana from growing into a multi-billion-dollar industry.) As Sam Kamin, a the Vicente Sederberg Professor of Marijuana Law and Policy the University of Denver’s Sturm College of Law wrote in a 2016 article, the president can unilaterally reschedule cannabis, but the president cannot deschedule.
