Politics: Like comedy, in politics, timing is everything.
And that is not all they have in common but let’s save that for another Sunday.
Generally, it is fair to say that the Biden administration has suffered from arrested development, out of sync with the mood of the voters, inexplicably unable to anticipate or even keep up with shifts in sentiment.
As concerns about violent crime have replaced calls to “defund” the police over racial inequities, the Biden administration decided the moment was now to seek rescheduling of marijuana.
Convictions for “simple” marijuana possession at the federal level are nearly nonexistent. For state and local governments, it is often an efficient use of judicial resources to seek a drug conviction when prosecution of other, co-incident crimes may take too much time and money without much public benefit.
Since a reschedule of marijuana has near term and probably very noticeable implications at the ground level of politics, why do it with control of Congress looming in a few weeks, the White House in two years?
One answer is that President Biden wants to appeal, albeit a little late, to a younger generation. The 18-29 cohort are the largest consumers of marijuana. Another is John Fetterman.
Fetterman is in a tight race with Dr. Mehmet Oz for the open Senate seat in Pennsylvania. Fetterman is a long-standing supporter of marijuana legalization. In late August, he called on President Biden to pave the way for that change.
President Biden ignored him until now.
It is a risky move given the way marijuana legalization can disrupt the prosecutorial habits of District Attorneys – many of them imperfect. Where de facto legalization has occurred, there is some evidence that crime rates are negatively impacted. Crime is a hot topic and polls well, especially recently.
If it is the case that Biden was trying to help Fetterman out, the race is closer – perhaps Fetterman is behind – than the polls suggest. The control of the Senate hangs in the balance.
Policy. De facto legalization of marijuana is popular. It is also very, very difficult. Its position on the drug schedule has allowed it to crawl into the nooks and crannies of state and federal criminal codes, health policy and employment, education and banking law.
First, the process for de/re-scheduling is statutory. The Controlled Substances Act spells is out. The SecHHS must make a recommendation based on eight factors and anything else he believes is relevant. Those factors include the scientific evidence of pharmacological effect, the state of scientific knowledge, the history and current pattern of abuse and psychic or physiological dependence liability, to name a few.
The SecHHS’ recommendation is binding on the AG. However, if a treaty requires the U.S. to control marijuana, then AG must assign it to the schedule he deems most appropriate without regard to the findings of SecHHS. That provision of the CSA limits, for the foreseeable future, de-scheduling.
Former SecHHS have found it difficult to conjure up the research necessary to justify a re/de scheduling. The dearth of DEA approved and controlled marijuana growers has stymied the work necessary to support a change in the drug schedule. That is changing as a result of the 2018 Farm Bill but research moves slowly.
Radical changes in policy direction, motivated nearly entirely by short term political considerations often flameout. As far as policy changes go, it is a very heavy lift that requires years of work.
In recent years, the federal government hasn’t broken much of a sweat – the FDA has been unable to generate CBD regulations four years on from passage of the 2018 Farm Bill. Could be by December, everyone loses interest.
Power: If the president is able to overcome the limited medical and scientific evidence to support his new policy, rescheduling marijuana presents yet another topic on which states can disagree with the federal health regulatory apparatus.
Late last week, Florida Surgeon General, Joseph Ladapo released guidance that discourages Covid vaccination in young men under 40. He was driven to make this policy change in response to elevated cardiac deaths in young men. The blue check medical crowd on Twitter went nuts and the social media company you love to hate censured the tweet.
As we have pointed out, without reaching a definitive conclusion about the cause, more people are dying now than you would expect from examining the 2014-2019 baseline. For the elderly there are a host of confounding factors that make definitive conclusions difficult. For the young, who generally die from non-natural causes, the analysis is much easier. Higher than expected mortality is cause for alarm.
With little documented public health benefit, if any, from marijuana use, expect a variety of responses at the state level.
Starting in Florida.
Emily Evans
Managing Director – Health Policy
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