The leaked opinion overturning Roe, combined with a largely unknown workers’ compensation case pending before the Supreme Court, reveal the Biden administration’s position on cannabis: The Biden administration doesn’t care about cannabis issues. Or is it that the Biden administration cares so much about cannabis issues to leave them in the hands of the current judiciary? Or something in the middle?

The Immediate Future of Roe

Regardless of your opinion on the correctness or wisdom of Roe v. Wade, the possibility that it may be overturned as reflected in the recently leaked opinion represents a potential sea change in the Court’s jurisprudence. It further represents the current Court’s willingness to take strong and decisive opinions on matters of broad political and cultural significance.

Cannabis is certainly one of those issues that sits at the intersection of law and order, popular opinion, and individual liberty. 

So, what does Roe have to do with the Biden administration’s approach to cannabis? Stay with us: In the words of Andy Dufresne, if you’ve come this far, maybe you’re willing to come a little further.

Why are you reading about a workers’ compensation case?

This Spring the Court has received briefing in a case presenting the question of whether the Controlled Substances Act (CSA) preempts an order under a Minnesota workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury. Specifically, the petitioner, Daniel Bierbach, sustained a work-related injury that required surgery and physical therapy. Bierbach was certified as suffering from intractable pain, which is a qualifying medical condition under Minnesota’s Cannabis Act. Bierbach subsequently purchased marijuana in accordance with the act and sought reimbursement from his employer. After the company refused the reimbursement on both state law and federal-preemption grounds, a state workers’ compensation judge held an evidentiary hearing and sided with Bierbach. The Minnesota Supreme Court reversed, holding that the federal CSA preempted state law. Bierbach petitioned the Supreme Court for review of the decision.

The Court invited the solicitor general of the United States to express an opinion on the question presented. In that brief, the solicitor general argued against granting Bierbach’s petition, relying largely upon the doctrine of obstacle preemption. Obstacle preemption comes into play when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” an inquiry which requires courts both to assess congressional intent with the presumption that Congress generally intends to leave state laws undisturbed. The solicitor general focused on the fact that “Congress’s classification of marijuana as a Schedule I controlled substance ‘reflects a determination * * * that marijuana has no currently accepted medical use’” and that Congress has yet to change that classification. The solicitor general concluded that the Minnesota Supreme Court’s decision was “correct for the straightforward reason that when a federal law such as the CSA prohibits possession of a particular item, it preempts a state law requiring a private party to subsidize the purchase of that item” (U.S. Br. 9).

Despite the seemingly clear-cut nature of marijuana’s classification under the CSA, the solicitor general did concede that medical marijuana law is a “rapidly evolving” field, even characterizing it as “a hazy thicket.” Nevertheless, the solicitor general appeared to consider Congress’s failure to affirmatively act and amend the CSA to be dispositive, largely dismissing recent Congressional actions that belie preemptive intent. For example, Congress has consistently passed appropriations riders prohibiting the federal government from using appropriated funds to prevent states “from implementing their own laws that authorized the use, distribution, possession, or cultivation of medical marijuana.” The solicitor general brushed off the appropriations rider issue as merely “a limitation on funding” that did not amount to “a repeal of the CSA’s substantive criminal prohibitions.” The solicitor general was similarly unperturbed by Congress’s decision to narrow the definition of. Instead, the solicitor general repeatedly returned to the idea that requiring reimbursement was tantamount to allowing “state laws compelling third-party reimbursement for federal crimes.”

So what are we to make of this?

We think there are three possible explanations for the solicitor general’s approach, and while they aren’t mutually exclusive they are all significant in their own ways.

But first, one thing is true. Almost two years into the Biden administration, during which Democrats have enjoyed majorities in the Senate and the House of Representatives, no meaningful cannabis reforms have become law. Nor, in our judgement, is any meaningful reform likely to occur before the midterms, even though there appears to be majority support in both houses of Congress for commonsense reform.

That said, here are the three most likely possibilities we can take away from the latest solicitor general’s brief:

1. President Biden does not support meaningful cannabis reform.

Maybe President Biden simply does not support liberalizing federal cannabis policy. We don’t think this is correct – at least not entirely and unequivocally – but there is evidence for this view in the president’s earlier political life.

Conventional wisdom has it that the Biden administration is generally good for the cannabis industry, but perhaps not as good as, for example, Sen. Bernie Sanders or Sen. Cory Booker – or even, depending on who you ask, Vice President Harris. But Biden is certainly better than… [insert generic Republican presidential nominee] – even if one could make the case that the Trump administration essentially continued the hands-off approach of the Obama administration.

But close observers have always wondered whether President Biden’s history on cannabis issues was an indication that he was, at best, ambivalent. In the run-up to the 2020 election, we wrote:

While the DNC’s 2016 platform championed a “reasoned pathway to future legalization,” DNC members voted to strike language from the platform regarding legalization in the 2020 platform – instead focusing on federal recreational decriminalization, legalized medical use, and allowing states to set their own rules and regulations. The 2020 platform tracks the recommendations made by the Biden-Sanders Unity Task Force organized by former Vice President Biden and Sen. Bernie Sanders, and more broadly reflects the measured approach Biden appears to be taking take toward broad-scale recreational legalization.

And for Biden’s personal opinion? He was far from the most pro-cannabis Democrat that was running for president this cycle. During his long tenure in the Senate, he championed several pieces of “tough on crime” legislation. For example, in 1986, Biden introduced the Comprehensive Narcotics Control Act, which sought to establish a cabinet-level office to coordinate the federal government’s drug enforcement policies, and in 1993, Biden sponsored the Violent Crime Control and Law Enforcement Act, a pre-cursor to the 1994 Crime Bill. With this track record, one might reasonably conclude that a Biden presidency would take a dim view of the cannabis industry.

People can change their minds on issues over time, and politicians are no different. But reasonable people can disagree about whether cannabis reform is an issue that President Biden would like his administration to undertake. And, to that end, whether the solicitor general’s recent opinion is a reflection of his reticence to do so.

2. President Biden is an institutionalist protecting federal power.

Maybe the solicitor general’s approach represents the president’s long-held view on the extent of federal power – specifically, that it’s a protection of the authority of the federal government and its singular authority to devise and enforce a national policy on controlled substances. He has spent nearly his entire adult life as a federal officeholder and has used his various positions to push positions he believes to be good for the American people.

Does that history lead him to the conclusion that the federal CSA’s prohibition on marijuana as a Schedule I narcotic necessarily trumps any state law to the contrary and, by extension, mean that a state (here, Minnesota) cannot reimburse payments because doing so would constitute a violation of federal law (either aiding and abetting or perhaps conspiracy to violate the federal CSA)? Our gut is that the president doesn’t personally prefer that outcome, but is it at least possible that his institutionalist-bent leads him to that conclusion? We think so.

3. President Biden is strategically preventing the current Court from ruling on an important cannabis issue.

Third, maybe the president has concluded that his opinion on cannabis must yield to the practical realities that bringing the issue in front of the Court as it is presently constituted would ultimately hurt the cannabis industry, regardless of his personal opinion of the matter.

This is the Roe analogy. Nearly all Court observers view the current Court as a conservative one, and the specter of Roe being overturned demonstrates to many the extent to which this Court will place a firm thumb on cultural issues that many have viewed as settled. And, as the thinking among many of those goes, if the Court is willing to pursue this type of sea change on what they view as settled law, the Court may be willing to go even further on an issue such as cannabis that has long existed in a grey area of the law.

Our sense is that this concern is the basis of the solicitor general’s position in the workers’ compensation case, which is that the cannabis industry is allowed to exist under current federal law and enforcement policy. If the Court takes a harsh view of what constitutes aiding and abetting or conspiring to violate the federal CSA, it could be devastating to the industry because it could cause otherwise willing participants in the industry to reconsider that participation. Not only cannabis operators, but all service providers – from banks and real estate companies to insurance companies and public utilities, just to name a few. If that is a valid concern, then the solicitor general’s approach has the benefit of maintaining the status quo, even if it does not move the industry forward.

Whether you consider it waiving the white flag or a tactical retreat to win the long game, the immediate reality is that cannabis advocates will not get what the want – but at least they may not get what they fear.

What’s next?

One of the most frustrating things to hear from a lawyer is “I’m not sure.” So we won’t say that, even if it’s true. Instead, we’ll reiterate our earlier message: Congress should vote or get off the pot. Congress could change the CSA and render these issues moot, or it could modify other federal rules that would give cannabis operators and service providers more confidence to participate in the industry. To bring it back to one of the author’s favorite movies: Remember, hope is a good thing. Maybe the best of things. We will be hoping to update you with more definitive news in the future.

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Photo of Whitt Steineker Whitt Steineker

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to…

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to commercial real estate companies to insurance companies and high net worth individuals – on best practices for interacting with cannabis companies.

Whitt is one of the leading voices in the cannabis bar – recognized as a “Go-To Thought Leader” by the National Law Review. He has presented on cannabis issues at conferences around the country.  His work has been featured in the National Law JournalLaw360, and the Westlaw Journal. And he has been quoted in an array of legal and mainstream publications from Law360 and Super Lawyers to the Atlanta Journal-Constitution and the Associated Press.

Photo of Claire Fox Hodge Claire Fox Hodge

Claire Fox Hodge is an associate in the Litigation Practice Group. Her practice focuses on complex commercial litigation, government investigations, and white-collar criminal defense. She thrives on tackling novel challenges and working with her clients to develop practical, innovative legal solutions.

Claire has…

Claire Fox Hodge is an associate in the Litigation Practice Group. Her practice focuses on complex commercial litigation, government investigations, and white-collar criminal defense. She thrives on tackling novel challenges and working with her clients to develop practical, innovative legal solutions.

Claire has participated in all stages of litigation in a wide variety of complex commercial cases, including drafting pleadings, discovery requests, subpoenas, and dispositive motions; preparing corporate witnesses for deposition; managing document production and review; retaining and coordinating with expert witnesses; and attending mediations.