OPINION: November’s Election Turned Red and Blue States into Green

Author note: Julie A. Werner-Simon is a law professor adjunct at Drexel University School of Law and teaches Marijuana Law: History, the Constitution & Best Business Practices.

The November 2020 presidential election broke records. More votes were cast for president (some 165 million) than ever before in our history. 

We have not surpassed this percentage of voters in a presidential election (approximately 67%) in 120 years, that is, since the election of William McKinley and his Vice president Theodore Roosevelt in 1900 at 73.7%. 

However, this uptick of participation in the political process has revealed entrenched partisanship. This, when coupled with what we witnessed on the steps of the capitol, shows that we are a nation riven by polarization. Reminiscent of 1860, as the nation splintered over slavery, we appear hopelessly divided by what the framers called “faction,” or as it is known today “political tribalism.”

Our politics (riffing on James Madison’s Federalist Papers Number 10) has devolved into jersey-wearing domestic factions with “citizens united and actuated in some common impulse . . . adverse to the rights of other citizens.” Social scientists have confirmed that 21^st-century politics is less about principles and more like allegiances to home-town sports teams with many voters, quoting a University of Kansas study, “caring more about . . . winning . . . than they do [about] ideology or issues.”  

But partisan-Mason Dixon divisions have not infused every political issue. There is one that trumps the jersey, and has done so from the mountains to the prairies: it is cannabis legalization. Blue, red, and purple states voted green this past November.

Five states from diverse regions of the country had cannabis on the ballot in November, specifically: Arizona, Mississippi, Montana, New Jersey, and South Dakota. And as Rolling Stone magazine “vernacularly” noted, “[e]very single weed initiative passed on election day.”

Unlike the nail-biting, five-day water torture before the networks called the presidential election for Joe Biden, the residents of the five states with cannabis initiatives knew the results when they awoke on November 4th. Cannabis won decisively. 

Cannabis Political Momentum

There are multiple indications that this cannabis-momentum will continue. The January 2021 Georgia run-off resulted in the installation of two new senators (Jon Ossoff and Reverend Raphael Warnock) who both campaigned on federal cannabis legalization platforms. 

Vice-president Kamala Harris who, as U.S. Senator, was a co-sponsor of a 2019 bill to federally legalize cannabis, and who during the October 2020 vice-presidential debate touted cannabis reform as one of the new administration’s goals, has made clear that systemic change is in the offing. 

So too, even though with enthusiasm expressed to a lesser degree, has been the gradual (decades-long) transformation of President Biden. He has gone from a 1990’s tough-on-crime-through-increased-drug-penalties warrior to someone now, at a minimum, who is accepting of state legalization programs, decriminalization, expungement of cannabis convictions, and medical-cannabis programs. Further, the Biden campaign acknowledged and promised to address the teeming racial disparities in America’s criminal justice system. 

With this soil tilled, there are three ways in which cannabis could be legalized federally during Biden’s presidency. All three are on the table.

The first way is with action by Congress. (Article I, section 1 of U.S. Constitution). The constitution vests “all legislative powers” (the ability to pass laws) in Congress. The 117^th Congress (which was seated on the first Tuesday of our new year, in accordance with section 1 of the 20^th Amendment) during its term of two years (that is, before the seating of the next congress after the 2022 midterm elections) can pass legislation to remove marijuana from Schedule I of the 1970 Controlled Substances Act (“CSA”) schedule.

Although it was the 91^st Congress, during the presidency of Richard Nixon, which said that it was only “temporarily” placing cannabis in the most restrictive classification category for drug substances (deeming cannabis—referred to as marijuana and often spelled with an “h”—to have “no currently accepted medical use,”) it is still there. 

Political winds have kept cannabis on Schedule I for this long, right next to other fellow illegal drugs (such as heroin and LSD), which are all classified as being so dangerous and addicting that they can never be prescribed by a doctor and have no “accepted medical use.” That medical-cannabis states and severely-limited-access states (this category includes states in which cannabis can be used by a limited number of universities or research institutions or for limited medical purposes by a significantly restricted patient population comprised primarily of those with incurable diseases, seizure disorders, and epilepsy), are home to some 323 million people and permit, under state law, degrees of medical-use of cannabis, has never persuaded Congress or the courts to take reparative action, at least not yet.

With the Senate reconstituted by the Georgia run-offs without Senate majority leader Mitch McConnell, who has consistently blocked any cannabis legislation, it is expected that the new Congress will pass cannabis-related legislation during the first two years of the Biden term.

The second way that marijuana could be rescheduled or removed (descheduled) from the Controlled Substances Act (CSA) drug classification schedule is through executive branch action. Under Article II of the Constitution (section 2) the president (the country’s chief executive) is authorized to create “executive departments” and appoint “principal officers” (commonly referred to as “secretaries” which in 1787 meant “leaders of departments”). The president decides who he wants as principal officers to lead the executive branch departments and these nominations must be confirmed (approved) by the Senate.

The procedure by which the executive branch (the president and specifically designated “principal officers”) can take action with respect to a drug classification or removal is recited in the CSA. 

The Controlled Substances Act, 21 United States Code section 811, provides that the Attorney General of the United States (the Senate-confirmed leader of the executive branch’s Department of Justice) asks the Secretary of Health and Human Services (HHS) (that is, of the executive department which in 1970, when the Act was passed was called “the Department of Health, Education and Welfare”) for a written scientific and medical evaluation to downgrade or remove marijuana (aka cannabis) from the federal 1970 drug classification schedule. The Act also permits the HHS Secretary, (without being asked by the Attorney General) to generate its own scheduling recommendation report.

This means that much is in the hands of the president’s picks for those two cabinet positions, the U.S. Attorney General and the Health and Human Services Secretary. If the president’s picks for both are confirmed by the Senate, likely now with the 50/50 Senate split, then Attorney General Merrick Garland would ask Health and Human Services Secretary Xavier Becerra for a rescheduling evaluation and report or Becerra, whose own agency supervises and oversees the Food and Drug Administration (the FDA, which evaluates drug safety and efficacy, among other things) can issue a written rescheduling evaluation on his own. The CSA requires the Attorney General to follow the recommendations of the HHS Secretary.

The future HHS Secretary Becerra, the current Attorney General of California, has been vocal about his pro-legalization stance. He hails from the Golden State, which was the first state, back in 1996, to legalize medical cannabis. The Attorney General nominee Garland, a long-time judge on the D.C. Circuit Court of Appeals who was nominated during the Obama administration for the U.S. Supreme Court but never was afforded a confirmation hearing by Senate Majority Leader McConnell, has not publicly taken any position. However, in an October 2012 oral argument during a declassification case appeal, Americans for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013), the judge made a statement about how courts should defer to government agency scientists for decisions about a substance’s efficacy and safety, because “... [w]e’re not scientists. They are ...“ (Listen to an audio clip of Judge Garland during the 2012 oral argument here.)

And even though the federal appellate court ruled against those seeking to challenge the government’s refusal to reschedule cannabis, it was a narrow decision based on deference to executive branch decisions. The court held that the government’s actions comported with the CSA’s procedure which leaves it to the government officials to decide whether “adequate and well-controlled studies proving efficacy” of a particular drug exist. 

Should HHS Secretary Becerra on his own instigation or at the direction of the Attorney General present to Attorney General Garland a written report based on adequate and well-controlled studies proving the safety and efficacy of cannabis, the Attorney General, dependent on the findings in Becerra’s report, could be required to remove marijuana or move marijuana to a lower classification schedule. The pertinent part of the relevant statute, 21 United States Code section 811 (b), states, “[T]he recommendations of the [HHS] Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug ... not be controlled, the Attorney General shall not control the drug ..."

As a result of the legalization successes in the states, and the composition of the new cabinet, this vehicle for removal or reclassification seems much more likely than it has at any point since the passage of the CSA.

The third way cannabis could be legalized is by “citizen-petition” through an administrative process involving the Attorney General and one of the agencies the Attorney General oversees, specifically the DEA (Drug Enforcement Administration). This process is more precisely called “citizen-petitions for the government to engage in administrative rulemaking.”

Under the CSA, any citizen can petition (that is, present or file a document to) the Attorney General requesting that any drug be moved to a different category in the schedule (rescheduling) or removing it from the schedule entirely (descheduling). The Attorney General has “delegated” the DEA to “receive” the citizen-petitions in accordance with 28 Code of Federal Regulations, § 0.100.1. If the government denies the rescheduling or descheduling petition, or issues any other adverse order, the citizen-petitioner can appeal directly to a federal appellate court (21 United States Code section 811(a)).

That’s the type of an appeal playing out now before the Ninth Circuit Court of Appeals in Sisley, et al. v. U.S. Drug Enforcement Administration, et al., (Case No. 20-71433). Dr. Suzanne Sisley, (an Arizona-based physician and cannabis researcher), the Scottsdale Research Institute (an Arizona cannabis clinical trials site conducting the only federally-authorized study of cannabis usage to treat PTSD in Veterans), as well as a group of veterans, in May 2020, filed an appeal in the Ninth Circuit Court of Appeals. 

Dr. Sisley et al, is appealing an April 2020 denial by the DEA of a marijuana-rescheduling citizen-petition filed by other third-parties in January 2020. The DEA, as a matter of course, (and as it has done in other citizen-petition appeals), filed a motion to dismiss the case. Such dismissal motions are often granted by the appellate courts as the courts give “deference” to the judgment and discretion of the federal government. But this did not happen in Dr. Sisley’s current case in the Ninth Circuit. Instead, the appellate court denied the DEA’s dismissal motion last August and ordered briefing by both sides. 

The DEA, in its most recently filed brief (dated Nov. 30, 2020) in Sisley, et al. v. DEA, continued to argue that the case should be dismissed and that Dr. Sisley’s complaints were merely “generalized grievances.” The agency vociferously declined to give any credence to the proliferation of states which have robust medical-cannabis programs that successfully treat a host of medical conditions. The DEA argued that merely because “[i]ndividual states ... pass laws that decriminalize marijuana under state law and provide for its use as a medical treatment. ... those laws, standing by themselves, do not demonstrate that marijuana has an accepted medical use such that it can be rescheduled from Schedule I.”

Dr. Sisley’s lawyers have been adamant that the DEA’s position is unjustified by the law and the facts. Dr. Sisley’s lawyers, in their most recent court filing dated Dec. 21, 2020, wrote (among other things), that “the DEA’s unlawful actions have ... impeded” Dr. Sisley’s “efforts to conduct clinical research with dispensary-quality marijuana—the very research that DEA has long-insisted must be done before it will reconsider marijuana’s Schedule I classification.”

The case is fully briefed. The next step is either (i) a public oral argument (between Dr. Sisley’s lawyers and the DEA’s Justice Department lawyers) before a three-judge appellate panel followed by a written decision of the court or (ii) the issuance by the court of a written decision with no in-court (or no Zoom court) hearing. The latter would be a judicial decision based exclusively on the paper-record of documents and pleadings filed to date.

Dr. Sisley’s lawyers are hoping that the appellate court, after reviewing all the filings, will schedule an oral argument. They want to be heard in open court. On January 8, 2021, the Ninth Circuit Court of Appeals issued an order proposing the scheduling of an oral argument in Seattle as early as May 2021.

But they may not need their day in court. The new Attorney General could change its position on the issue and in this specific case. It’s unlikely that the court will make any substantive decision in this case before the Senate confirmation hearings of the Attorney General and the Secretary of Health and Human Services. If the court waits, it may have a lot less work to do.

Calls for Unity Answered?

It is with the most profound relief that we turn the page on this past last year. As we in America and in the greater world struggle with the escalation of COVID deaths and self-searchingly contemplate the causes of the American carnage exhibited at the Capitol, many of us are seeking, in fact, craving evidence of unity or ties that kindly bind.

The November 2020 election offers up a sprig of spring. Red, blue and purple have come together in a unified color palette of green. This perhaps portends greater days ahead.