As election day approaches, drug policy has again emerged as a key campaign issue for incumbent President Joe Biden and former President Donald Trump—with each candidate’s policy positions around cannabis coming back into focus.
Biden’s campaign is hoping to leverage the popularity of marijuana reform, highlighting his mass pardons and the scheduling review directive that led the Department of Justice (DOJ) to recommend moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). That said, Biden’s ongoing opposition to broader legalization and his history as a drug warrior in the Senate may again come into play for voters.
How Trump will navigate cannabis is less certain. He’s generally indicated over the past year that he intends to position himself as an anti-drug candidate, proposing extreme policies such as the death penalty for people who sell illegal drugs. His record on cannabis specifically is mixed, however, and he’s been known to vacillate on various positions, depending on when he’s asked.
As the presidential rematch heats up, it’s likely the candidates will be pressed once again on cannabis, warranting a revisitation of their records.
Biden has issued two rounds of mass marijuana pardons since taking office, granting formal forgiveness to thousands of people with low-level convictions. The action is largely symbolic, and the president has faced criticism from advocates over his prior exaggerated claims about the practical impact of the reform, as well as the fact that certain people (e.g. migrants and people with marijuana sales convictions) were excluded.
In May, Biden finally recognized that the pardons he issued did not expunge prior records, after previously falsely claiming they did. The administration did facilitate a process to give pardon recipients DOJ certification, but those records are still accessible and could theoretically affect eligibility for employment and housing, for example. As congressional researchers have pointed out, however, the president does not have authority to unilaterally seal federal records.
Biden remains out of step with voters—particularly those in his own party–when it comes to legalization.
“No one should be in jail merely for using or possessing marijuana” has become a common talking point for the president. In a historic move, he even made that point during his 2024 State of the Union address, indicating that he recognizes the popularity of the issue and the political benefits of associating himself with reform in the run-up to the election.
But Biden remains out of step with the majority of voters—particularly those in his own party–when it comes to broader legalization. While he directed the review into cannabis scheduling that resulted in the Schedule III reclassification proposal, that would not federally legalize marijuana. It would, however, remove certain research barriers and free up state-licensed cannabis businesses to take federal tax deductions.
Biden also signed a bill into law in late 2023 that was meant to streamline marijuana research—the first time that a president enacted standalone cannabis reform legislation.
After the Department of Health and Human Services (HHS) recommended rescheduling marijuana, and the DOJ agreed with that assessment, the Biden-Harris campaign was quick to promote the administration’s role in the decision. In email blasts, the campaign contrasted Biden’s cannabis actions with those of the Trump administration, emphasizing that federal enforcement guidance that urged discretion with state cannabis laws was rescinded under Trump.
That said, the Biden administration has not issued updated guidance, despite comments from Attorney General Merrick Garland about an intent to do so.
Also, while top officials at the DOJ, HHS, the White House Office of National Drug Control Policy (ONDCP) and other agencies have applauded the president’s work to reform federal marijuana policy, the administration has faced criticism for other anti-cannabis actions, such as the DOJ’s consistent defense of a ban preventing cannabis consumers from owning guns in the face of multiple federal lawsuits challenging the constitutionality of that policy.
Also under Biden, Customs and Border Protection (CBP) has faced scrutiny for using resources to seize cannabis from state-legal businesses in New Mexico.
Recently, the White House said Biden “commends and welcomes” the mass pardons issued in Maryland.
Another key criticism from advocates and lawmakers concerns the administration’s budget requests, which have all proposed maintaining an appropriations rider blocking Washington, DC, from using local tax dollars from legalizing marijuana sales, despite voters in the District approving legalization a decade ago.
Recently, the White House said Biden “commends and welcomes” the mass pardons issued at the state level by Maryland Governor Wes Moore (D). The president had encouraged governors to follow his lead with cannabis pardons.
The White House has come out against a House-passed proposal to prevent military branches testing for cannabis for enlistment or commission as part of a large-scale defense bill, calling cannabis use a “military readiness and safety concern.”
However, the president signed an earlier version of the National Defense Authorization Act that contains provisions to fund clinical trials into the therapeutic potential of psychedelics for active-duty military service members.
Early in 2021, meanwhile, the Biden administration came under fire after it was reported that it had terminated or otherwise punished dozens of staffers who disclosed prior cannabis use during their background check process.
As president, Trump largely stayed true to his position that marijuana laws should be handled at the state level, with no major crackdown on cannabis programs as some feared after then-Attorney General Jeff Sessions rescinded the Obama-era federal enforcement guidance. In fact, Trump criticized the top DOJ official and suggested the move should be reversed.
While he was largely silent on the issue of legalization, he did tentatively endorse a bipartisan bill to codify federal policy respecting states’ rights to legalize.
Trump eventually forced out Sessions from the top spot at the DOJ, replacing him with William Barr, who at points indicated the department should not waste resources on enforcing prohibition in legal states, but also faced internal criticism for leading investigations into cannabis industry mergers that were reportedly borne out of a personal animus for marijuana.
While Trump has spoken in favor of medical cannabis legalization, on several occasions he released signing statements on spending legislation stipulating that he reserved the right to ignore a long-standing rider that prohibits the DOJ from using its funds to interfere with state-legal medical marijuana programs.
While Trump did issue a number of pardons and commutations for people with certain drug convictions, he’s expressed extreme views when it comes to trafficking.
While in office, Trump signed “Right to Try” legislation to allow terminally ill patients to access drugs that haven’t been approved by the Food and Drug Administration but have cleared a phase one trial—a move that some advocates said would let a limited number of people use cannabis, psilocybin and MDMA for therapeutic reasons.
He also gave final approval to a bipartisan resentencing bill affecting drug cases, as well as large-scale agriculture legislation that included provisions legalizing hemp containing up to 0.3 percent THC by dry weight.
However, while Trump did issue a number of pardons and commutations for people with certain drug convictions—and at points seemed to sympathize with people with substance use issues—he’s expressed extreme views when it comes to trafficking.
Trump’s officials also issued a cease-and-desist letter in 2020, demanding that Mississippi medical cannabis activists stop using his name to campaign for their ballot initiative—despite the fact that the advocates accurately quoted his repeated comments in support of medical marijuana.
Another controversial administrative action concerned migrants and marijuana. In April 2019, Citizenship and Immigration Services issued a memo stating that using cannabis or engaging in cannabis-related “activities” such as working for a dispensary—even in states where it’s legal—makes immigrants ineligible for citizenship because it means they don’t have “good moral character.”
In December 2019, Trump’s DOJ issued a notice that it was seeking to make certain marijuana convictions, including misdemeanor possession, grounds to deny people asylum.
During the course of his failed 2020 reelection bid, Trump’s campaign made clear it wanted to depict him as the criminal justice reform candidate, repeatedly attacking Biden over his record as an “architect” of punitive drug laws during his decades in the Senate, for example.
While Biden has increasingly promoted cannabis policy reform as president, during his time in the Senate he served as chair of the influential Judiciary Committee that helped shape United States drug policy during an era of heightened scaremongering and criminalization. And he was among the most prominent Democratic drug warriors in Congress for decades.
He sponsored some of the country’s most punitive drug legislation, including the notorious 1994 crime bill—even though in some cases, he has addressed the consequences of his anti-drug legislative activism.
Biden introduced the Comprehensive Narcotics Control Act of 1986. The wide-ranging anti-drug legislation called for the establishment of a cabinet position to develop the federal government’s drug enforcement policies—a role that fits the description of “drug czar,” a term Biden coined in 1982 and which was subsequently created to lead ONDCP.
Shortly after announcing his candidacy for the 2020 presidential election, Biden came out in support of decriminalizing marijuana, legalizing medical cannabis, expunging the records of people with prior marijuana convictions and allowing states to set their own cannabis policies. A spokesperson also said he favored rescheduling marijuana to Schedule II—though he’s since backed the DOJ assessment that it should be moved to Schedule III.
Biden found himself in hot water in November 2019, after arguing that marijuana may be a “gateway” to riskier drugs, which was partly why he opposed legalization.
It might come as a surprise, but 30 years ago, Trump argued in favor of legalizing all drugs. He’s since dramatically shifted on that position.
“We’re losing badly the War on Drugs. You have to legalize drugs to win that war. You have to take the profit away from these drug czars,” he said at the time. “What I’d like to do maybe by bringing it up is cause enough controversy that you get into a dialogue on the issue of drugs so people will start to realize that this is the only answer; there is no other answer.”
Trump suggested a link between the use of “genetically engineered” cannabis and mass shootings.
Twenty-five years later, he was at the Conservative Political Action Conference stating that he thought marijuana legalization was “bad” and that he felt “strongly about that.”
“They’ve got a lot of problems going on right now in Colorado, some big problems,” he said.
But Trump later clarified that he supported states’ rights to set their own marijuana laws, saying, “If they vote for it, they vote for it.”
“Medical marijuana is another thing,” he added. “I think medical marijuana, 100 percent.”
In April 2023, Trump suggested a link between the use of “genetically engineered” cannabis and mass shootings.
“We have to look at whether common psychiatric drugs, as well as genetically engineered cannabis and other narcotics, are causing psychotic breaks” that lead to gun violence, he said.
Trump seemed confused during an interview in June 2023, when he was confronted with the fact that his proposed plan to impose the death penalty for drug trafficking would have condemned a woman whom he pardoned and promoted as an example of a key criminal justice reform achievement during his administration.
He first defended his extreme position that traffickers should be quickly convicted and executed, touting countries like China and Singapore for enforcing the death penalty for drug convictions. He said that this “is the only way you’re going to stop” addiction.
The interview host contrasted that position with the president’s support for bipartisan sentencing reform legislation, the First Step Act, that he signed into law in 2018.
“But I focused on nonviolent crime,” Trump said, citing his presidential commutation and pardon of Alice Johnson as an example. He said that Johnson, who was sentenced to life in prison without the possibility of parole over her role in a cocaine trafficking ring in the 1990s, “got treated terribly” and “unfairly,” equating her treatment to his own as he faces multiple federal charges.
In January 2023, Trump announced plans to “destroy the drug cartels.” And he reportedly asked advisors about the possibility of taking military action against trafficking organizations in Mexico.
Both presidential candidates have mixed records on cannabis that leave them open to criticism from reform advocates. But Biden’s trajectory has been trending strongly toward reform since he took office.
Trump’s position on cannabis remains somewhat opaque, though so far he’s given no indication that he would push for pro-cannabis policies if he got another term in the White House—and he’s ramped up anti-drug rhetoric on the campaign trail.
The candidates seem aligned on at least one issue: States should have the right to set their own cannabis policies without federal interference.
There’s also an open question about where Trump will fall on a state-level legalization initiative that he’ll get a chance to vote on this November, as a Florida resident. “I believe it has always been his position that the states should decide,” Roger Stone, a Republican consultant and longtime ally of Trump, told Marijuana Moment in April. However, he added: “I don’t know that he personally would vote for this.”
The candidates do seem aligned on at least one issue: States should have the right to set their own cannabis policies without federal interference.
While Biden has campaigned on his marijuana pardons and scheduling directive, he’s made clear he’s not interested in going further, by granting clemency to people with convictions for sales or cultivation, for example. He also remains opposed to adult-use legalization.
With polling consistently showing public support for ending marijuana prohibition, it remains to be seen whether that might factor into the thinking of either candidate as they move forward with their campaigns. The issue might be more popular among Democrats, but surveys have indicated that either candidate would stand to benefit from embracing reform.
Image (cropped) by Andrea Widburg via Flickr (sourced from Wikipedia)/Public Domain
This story was originally published by Marijuana Moment, which tracks the politics and policy of cannabis and drugs. Follow Marijuana Moment on Twitter and Facebook, and sign up for its newsletter.
