While Presidential candidates’ positions on cannabis may make for good headlines, the reality is that, aside from signing legislation and directing federal agencies, the office of the President of the United States (POTUS) does not have the power to fundamentally change cannabis laws. Even the rescheduling process currently in the hands of the DEA, resisting the move to Schedule III, will be out of reach of President Trump’s influence.

POTUS cannot:

• Change the CSA
• Reschedule, Deschedule, or Legalize Cannabis through Executive Order
• Change Tax Code (26 U.S.C. Internal Revenue Code 162 (c)(2) or 280E)

Despite speculation about his picks for crucial Executive Branch offices, like the Department of Health and Human Services (HHS) and the next Attorney General who will head the Department of Justice (DOJ), or his campaign promises, President-elect Trump’s powers are limited regarding cannabis policy and even taxation. As defined in the United States Constitution, the President-elect must work with Congress to keep his promises. However, there are policy changes and Executive Orders he could issue to help patients immediately. For example:

POTUS can:

• Stop Evictions of Medical Cannabis Patients in Federal Housing
• Allow VA Doctors to Recommend Cannabis
• Stop Drug Testing Federal Employees & Contractors for Cannabis
• Reinstate the Cole Memo
• Ask Congress for Comprehensive Medical Cannabis Legislation

POTUS & Cannabis Scheduling

“…the Supreme Court has held that the President has the power to issue an executive order only if authorized by “an act of Congress or . . . the Constitution itself.” The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area…Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.”- CRS Report: Does the President Have the Power to Legalize Marijuana? Updated November 4, 2021

The only way Trump can impact cannabis scheduling is to repeat the process Biden started. However, he can only start a new process once the current one has run its course. Considering there is no statutory time requirement for the DEA to make its final ruling, lawsuits will likely follow the final ruling, and several organizations are filing lawsuits now because they were not added to the witness list; the opportunity to start a new rescheduling process could be years in the future.

While the eventual change in scheduling, especially under Schedule III, would make conducting cannabis research more accessible by decreasing costs to meet requirements for the handling, storage, and security associated with Schedule I substances, unregulated Schedule II/III substances are federally illegal. State medical cannabis programs will continue to be protected from federal interference by the DEA and DOJ under the protections provided by the “Commerce, Justice, Science, and Related Agencies Medical Cannabis Amendment,” passed each year since 2014 (as long as we can continue to pass it).

However, this is not the same as being a legal business to the IRS. If cannabis becomes a Schedule III substance, state-licensed cannabis businesses would still be operating outside federal law, and U.S. tax law is clear on the fact that illegally obtained income is taxable and must be declared. Unfortunately, this is another area where the president-elect cannot directly intervene. While 26 U.S.C. Internal Revenue Code 280 E would no longer apply to cannabis businesses, these businesses would still be subject to 26 U.S.C. Internal Revenue Code 162 (c)(2), which prohibits any deductions for “illegal payments, including bribes, kickbacks, or any payments that violate federal or state law.” Deductions would require a change in tax code or for cannabis businesses to become legal under federal law; both would require an act of Congress. Businesses deducting business expenses from their tax return before such an action would likely find themselves in legal battles with the IRS.

Cannabis & 119th Congress

The most significant changes to medical cannabis policy have come from Congress, not the President. The Rohrabacher-Farr Amendment, later known as the CJS Amendment, was an action taken by Congress that prevented federal raids on cannabis providers and protected patients, even under the anti-cannabis administration of Jeff Sessions. The real power to end prohibition and create a lasting regulatory framework lies in Congress.

Despite starting the 119th Congress with top federal health agencies confirming that Cannabis has accepted medical use in the United States, media coverage speculating that President Biden had initiated the scheduling review as a strategic move for his re-election cast doubt on these findings and redefined a once fading partisan line around medical cannabis policy. So instead of a groundswell of support for patients, gestures to restore our federally protected rights, or create avenues for nationwide access, the most visible impact of the news of HHS and DOJ findings about the medical benefits of cannabis was a (temporary) surge in stock prices for publicly traded cannabis companies and a resurgence in the anti-marijuana lobby in Washington, D.C.

Significantly, on July 9th, the House Appropriations Committee passed a version of the Commerce, Justice, Science, and Related Agencies (CJS) appropriations bill that included language to block rescheduling efforts for cannabis (Section 623) and a modification to the medical cannabis amendment from 2014 that has been protecting medical cannabis business since that time. These proposed amendments open the door for federal interference in state medical cannabis programs again (Section 531(b)) with double penalties. The very next day, a group of 25 GOP Senators and Congressmen sent a letter to Attorney General Garland condemning the rescheduling process: “It is clear that this Proposed Rule was not properly researched, circumvented DEA, and is merely responding to the popularity of marijuana and not the actual science.”

Unfortunately, the change in party leadership in the Senate means that many of the signatories of that letter will be in the very leadership positions that the President-elect would need to work with to move cannabis policy. Senate signatories include James Lankford, R-OK; Ted Budd, R-NC; Shelley Moore Capito, R-WV; John Cornyn, R-Texas; Bill Hagerty, R-TN.; Jerry Moran, R-KS.; Pete Ricketts, R-Neb.; Mitt Romney, R-Utah; & John Thune, R-S.Dakota.

119th Congress Senate Leadership

• John Thune (R-SD), Senate Leadership-Decides the agenda for the Senate, including what bills will have hearings and votes
• Shelley Moore Capito (R-WV)-GOP Policy Committee Chair
• James Lankford (R-OK)-GOP Policy Committee Vice-Chair 
• Jerry Moran  (R-KS)– Likely new chair for Approps. CJS Subcommittee 
• Bill Hagerty (R-TN)- Likely new chair for Approps. AG subcommittee 

TAKE AWAY: PATIENTS NEED TO GET ORGANIZED, FAST! 

Our plan to create a national medical cannabis program and federal patient protections does not wholly rely on POTUS but instead on YOUR participation. ASA is confident in support for medical cannabis to allow us to push through. But we will need the funds to fight back and advance our agenda. The 118th Congress was the first time since 2002 that patients were not represented on Capitol Hill by ASA due to lack of funding. It was also the first session since before 2002 that medical cannabis legislation wasn’t introduced and the first time in over a decade that opponents in the House chipped away at our protections granted under the Medical Cannabis CJS Amendment. 

DO YOU WANT PATIENTS TO BE REPRESENTED IN WASHINGTON? CHIP IN NOW & MAKE IT HAPPEN! 

If you missed the ASA post-election debrief, you can download the presentation.