Can Biden Legalize Weed in National Parks?
With increasing decriminalization efforts underway, here’s what it would take to legalize weed on public lands
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On October 6, President Biden followed through on a campaign promise when he issued pardons for all prior federal offenses for simple marijuana possession—and urged governors to do the same in their own states. The president also initiated a review of federal marijuana scheduling, a move that could mean related crimes would be prosecuted less severely.
As decriminalization efforts continue to expand at both the state and federal levels, is it conceivable that weed could soon be legal in national parks? There are two avenues through which it could happen.
Scenario One: Executive Order
Marijuana, or, as the Controlled Substances Act of 1970 calls it, “marihuana,” is classified as a Schedule 1 controlled substance. That misspelling, and the categorization of the plant alongside really harmful drugs like heroin, is indicative of how outdated the CSA is.
Its Schedule 1 categorization means that, under federal law, it’s illegal to cultivate, possess, use, or distribute the devil’s lettuce. Now that recreational marijuana is legal in 19 states, plus Washington D.C. and Guam, that Schedule 1 status causes all sorts of problems, in addition to preventing us from getting high in the Grand Canyon. This is why marijuana-related businesses face difficulties using the banking system, and why researchers have a hard time conducting marijuana-related research. It also means that people violating federal marijuana prohibitions can be subject to all sorts of unexpected consequences beyond simple criminal penalties, even when using weed in compliance with state law. These include losing eligibility for housing and food assistance, gun ownership, visas, and employment.
It’s not always clear where the delineation between federal and state land lies, or which laws apply where. While the federal prohibition against marijuana applies to all federal land, including units managed by the United States Forest Service and Bureau of Land Management, those agencies typically enter into agreement with state and local law enforcement agencies to police those lands, under their own sets of rules. Conversely, the National Park Service operates its own program enforcing federal law. Which set of laws—state, local, or federal—will be applied where? It’s confusing, and sometimes up to individual law enforcement officials. And that’s doubly a problem given the racial bias that exists in law enforcement, and particularly in marijuana-related convictions and penalties.
All of this is something the president is trying to address by initiating the review of Marijuana’s categorization under the CSA.
The Congressional Research Service—a nonpartisan federal agency that provides comprehensive legal analysis to lawmakers—reports that the president does have the authority to re-categorize marijuana, “but is bound by the CSA to consider factors including a substance’s medical utility and risk of abuse and dependence prior to altering its scheduling status.”
In order to follow that legal process, President Biden ordered the Department of Justice and the Department of Health and Human Services to begin an “expeditious” review of the plant’s status under the CSA. Presumably this will produce a recommendation for the Executive Branch to follow, potentially leading to an alteration in marijuana’s scheduling by Executive Order.
What will that re-scheduling mean? The answer to that question is subject to much legal debate, largely because there is no precedent. And potential outcomes all seem to be incredibly complicated. Authorizing medical use of marijuana federally, for instance, would require Food and Drug Administration (FDA) approval of marijuana-based drugs. In order to do so, the FDA would require clinical trials first on animals, then humans, plus studies that would establish a baseline on the substance’s side effects. The process takes 12 years for most drugs.
New legislation would be required, at the Congressional level, around issues like taxation, cultivation, and importation. Then rule making would be required at individual agencies, like the NPS, around what might be permitted.
Even in a best-case scenario, where medical marijuana use becomes permitted under federal law, it’s unlikely that you’ll be able to simply light up a joint in a national park. Look at regulations in states that currently allow medical use of the plant, and you’ll typically see prohibitions against actively consuming it in public. Any area that prohibits smoking of tobacco in those states also typically prohibits smoking marijuana, too.
TL;DR: It’s unlikely that an executive order will result in the widespread legalization of marijuana use in national parks.
Scenario Two: Congressional Action
Reforming marijuana laws will be incredibly complicated, and the president can only act through the constraints of existing legislation. New legislation must be created by Congress.
Fortunately, it turns out there are already four bills in Congress attempting to reform marijuana laws right now.
- The Marijuana Opportunity Reinvestment and Expungement (MORE) Act seeks to deschedule weed from the Controlled Substances Act entirely, while also enacting criminal and social justice reforms to existing convictions. It passed the House of Representatives in December 2020, but failed to advance in the Senate. By decriminalizing weed at the federal level, MORE would presumably also decriminalize it in national parks.
- The Secure and Fair Enforcement (SAFE) Banking Act was first introduced in 2013 and would allow marijuana businesses access to financial services. It wouldn’t do anything to legalize weed inside or outside of national parks, but it would mean you could use your credit card to buy it. SAFE has passed the House six times, but the Senate refuses to take it up.
- The States Reform Act would end the federal prohibition of marijuana and create a framework for regulating its cultivation, distribution, and use. It was introduced in the House in 2021, but hasn’t gone anywhere.
- The big news here is the Cannabis Administration and Opportunity Act, which aims to deschedule marijuana from the CSA, recognize existing state legislation, enact banking reform, and automatically expunge the records for all nonviolent marijuana crimes in one fell swoop. It was introduced to the Senate in July by Cory Booker (D-NJ), and is currently in the Finance Committee. If this were to become law, marijuana use would no longer incur criminal penalties on federal land.
What’s the likelihood that any of these bills can achieve a wide base of support, go on to pass both houses of Congress, and be signed into law by the president? Marijuana legalization has broad support across party lines among voters, but so far it isn’t tracking as a hot issue for this midterm cycle or among potential 2024 presidential candidates.