On November 10, 2020, just a week after the elections, the Drug Enforcement Administration (DEA) denied our petition for a new federal regulation exempting state medical cannabis programs to be added as 21 C.F.R. §1307.32. DEA explained that denying the exemption was necessary because it would create an exemption:
Of course it would. That’s the point. Why would we ask for an exemption that does not exempt anything?
DEA has already recognized a broad exemption from schedule I for religious use of peyote, 21 C.F.R. §1307.31, so of course DEA can recognize the same thing for a state. States created the federal government. DEA owes its very existence to the states. DEA would have no authority to exempt a church from federal schedule I if the states hadn’t given the DEA that authority in the first place. DEA is biting the hand that feeds it.
47 states have enacted exceptions to their state drug laws for medical cannabis, and in the 2020 general elections 4 more states enacted exceptions for non-medical use bringing that total to 15 states. It is important to note that none of these states has repealed their existing drug laws. These new laws stand side by side with existing drug laws, creating exceptions to existing drug laws without creating positive conflict between two.
The lack of any positive conflict between an exemption and existing drug law is important, because federal drug law uses that same language in its anti-preemption clause:
On November 3, 2020, Arizona, Montana, New Jersey, and South Dakota authorized the non-medical use cannabis.
DEA obstinately argues that none of this matters and that no exemption is required to maintain constitutional balance, citing Raich v. United States, 545 U.S. 1 (2005), for the proposition that the federal drug laws are a constitutional exercise of federal legislative authority. And, yet, the exemption from federal schedule I for peyote has never been questioned by the DEA as inconsistent with federal drug legislation.
Perhaps the new Biden Administration will instruct the DEA to reconcile it’s inconsistent application of the federal drug laws to the states. President-Elect Joe Biden says he will respect state cannabis laws:
Biden’s marijuana policy states:
We filed our petition filed with the DEA in January of 2019, but immediately afterward I began talking with state officials about it. State officials were receptive. Just like me, state officials did not think they were doing anything wrong by authorizing the use of cannabis. It was not their intent to authorize violation of federal drug laws.
On February 1, 2020, I presented the issue to the Iowa Medical Cannabidiol Board.
On March 6, 2019, I asked legislators add an amendment stating our state program is exemption from federal drug laws, but instead a different amendment was added to Senate File 501. The amendment, Section 20, said our state cannabis program is not federally regulated. DEA does not agree and thinks Iowa lacks federal authority. So, it’s not as simple as just stating the obvious if DEA doesn’t recognize the obvious. The amendment to SF 501 was not as strong as I had hoped for.
On August 2, 2019, I got the Iowa Medical Cannabidiol Board to recommend the Iowa Department of Public Health (IDPH) obtain acknowledgement from DEA that our medical cannabis program is exempt from federal drug laws. And, on January 1, 2020, the Iowa Medical Cannabidiol Board recommended the legislature consider an exemption from federal drug laws. On January 7, 2020, IDPH declined to move forward with the federal exemption “at this time.”
On June 3, 2020, the legislature responded by including language in House File 2589 directing IDPH to obtain federal funding guarantees for Iowans who use medical cannabis. Section 31 states:
Finally, on September 4, 2020, IDPH agreed the only way to obtain federal funding guarantees is to obtain an exception from the federal drug laws. IDPH stated:
- In their 2019 Annual Report, the Board recommended that IDPH seek protections for schools and facilities participating in our program and acting in compliance with Chapter 124E.
- The General Assembly prescribed in HF2589 that IDPH “seek guarantees” that Federal funding to institutions and facilities acting in compliance with Chapter 124E not have their funding withheld due to participation in Iowa’s program.
- The Department has determined that it will move forward with seeking an exception for cannabis as a schedule I substance in Iowa from the DEA, in attempt to minimize conflict between State and Federal Law.
- The Department will seek this exception using Title 21 Code of Federal Regulations 1307.03.
IDPH was not deterred by the November 10, 2020, DEA letter denying our petition, but it has certainly given IDPH something to consider during the transition in the federal executive branch administrations.
Beyond the ridiculous assertion that an exemption can’t be recognized because it would create an exception to the federal drug laws, DEA also relied on congressional intent and international drug scheduling:
The timing of DEA’s letter is interesting, coming just one week after the general elections and only a few weeks before the International Narcotics Control Board vote to reclassify cannabis. The United States supported removing cannabis from the most restrictive of the international schedules. One has to wonder if the DEA had to act fast while the status quo was still intact.
On December 2, the International Narcotics Control Board removed cannabis from the most restrictive classification of the 1961 Single Convention on Narcotic Drugs.
Congressional intent is also changing rapidly. On December 4, the U.S. House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act of 2019 by a vote of 228 to 164
| PARTY | YEAS | NAYS | NOT VOTING |
|---|---|---|---|
| Democratic | 222 | 6 | 4 |
| Republican | 5 | 158 | 34 |
| Independent | 1 | 0 | 0 |
| Total | 228 | 164 | 38 |
Specifically, the MORE Act removes marijuana from the list of scheduled substances under the Controlled Substances Act and eliminates criminal penalties for an individual who manufactures, distributes, or possesses marijuana. The Congressional Record contains the final version of the bill:
And, of course, the federal budget has included an exception for state authorized use of cannabis since 2014.
The international treaties also have exceptions in them for domestic laws and constitutional limitations of a party to the treaty.
Whatever reasons Congress had for placing cannabis in schedule 1 in 1970, those reasons have certainly diminished over time.
The exemption for peyote has been in existence since 1970, and the international treaties have had explicit exceptions in them since 1970 for constitutionally enacted domestic laws.
If state authorized use of cannabis is unconstitutional, DEA needs to explicitly say so instead of cowardly claiming it had no obligation to recognize them. DEA cannot simply stand idly by if states are enacting unconstitutional laws and then attempt to intimidate and harass the citizens who attempt to engage in the activity authorized by those same laws. DEA could challenge these state laws in federal court before innocent people are entrapped by them.
On December 9, 2020, we filed a new petition with DEA, pointing out, among other things, the federal budget has been making exceptions for state authorized use of cannabis since 2014, and the international treaties have now been amended to reduce international restrictions on cannabis.
A total of 47 states have now authorized medical use of cannabis and DEA thinks it can deny them protection under the U.S. Constitution without challenging the constitutionality of those state laws. We don’t think DEA has been given that authority under the federal drug laws.
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