The American Bar Association (“ABA”)’s Criminal Justice Section has issued a report to the House of Delegates urging Congress to enact legislation to “exempt from the Controlled Substances Act any production, distribution, possession, or use of marijuana carried out in compliance with state laws,” to remove marijuana from Schedule I of the Controlled Substances Act, and to enact legislation “to encourage scientific research into the efficacy, dose, routes of administration, or side effects of commonly used and commercially available cannabis products in the United States.”
The ABA’s solution to federal regulatory reform is essentially an endorsement of the Strengthening the Tenth Amendment Through Entrusting States Act (“STATES Act”). The STATES Act was introduced in Congress last term and provides that the CSA’s prohibitions on marijuana should not apply to those acting in compliance with state law regarding marijuana business. But the ABA takes it one step further, proposing federal legislation that empowers states to opt out of the Controlled Substances Act (“CSA”) all together.
The ABA’s proposed solution additionally addresses perhaps the greatest omission from the STATES Act: the ABA urges Congress to amend marijuana’s status under the CSA, either through removing marijuana from Schedule I of the CSA, or by de-scheduling marijuana altogether and providing for a separate regulatory body in such a way like that of alcohol, tobacco and now hemp under the Agricultural Improvement Act of 2018.
The ABA’s final proposal calls on Congress to actively facilitate research into marijuana. The Report provides “As greater scientific knowledge of the benefits and harms of marijuana develop, Congress and the states can work together to ensure that the benefits of marijuana can be realized while the harms of the drug are properly addressed. Encouraging careful scientific study of marijuana will be beneficial regardless of the direction of marijuana law reform in the future.”
But how much clout does the ABA carry with regard to legislative change?
The ABA is a voluntary professional organization that regulates the legal profession in the United States. Although potentially influential, the ABA has no direct role in legislation or other congressional matters.
All in all, the ABA’s report merely serves to add additional pressure on Congress to make legislative moves. According to a former senior senate counsel, “It cannot hurt to have that endorsement, but it won’t move matters either way. I suppose if they opposed the legislation, it would be even more dead in the water than it already is in THIS congress.”
“This congress” is comprised of republican senators who stand strong in opposition to any legislation that could be seen as moving cannabis legalization forward. At recent Senate Banking Committee hearings concerning marijuana banking reform legislation introduced into the Senate, not a single Republican Committee member showed up for the hearing to show any support for the Bill. The only Republican who was there was Chairman Crapo, and he was required to be there, given his position as chairman.
With the Republican Congress’s focus on moving judicial nominations for the rest of the Congress, it will likely take much more than ABA efforts to get cannabis legislation on the Senate floor this term.
Content provided by Charles E. Feldmann, member of ABA’s Cannabis Task Force Committee. The first ever ABA cannabis Continued Legal Education is to take place in Chicago, IL, September 19-20, 2019. See www.ambar.org/tipscannabis for more information.