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American Bar Association Tells Feds: Let States Legalize Cannabis

August 14, 2019
The nation's largest legal organization has come out in favor of allowing states to decide on cannabis legalization for themselves, without federal interference.(DNY59/iStock)
This week the influential American Bar Association (ABA) took a bold and strikingly impassioned stance on cannabis reform.

On Monday, during the group’s annual meeting in San Francisco, the ABA’s House of Delegates passed a resolution—without any vocal opposition—that urges Congress to end the draconian federal laws that have created nothing short of a “regulatory quagmire” for states where cannabis is legal.

'When the Bar Association gets behind something, for a lot of elected officials it gives that position credibility that it wouldn't otherwise have.'
Keith Stroup, NORML founder

And they put together a plan to fix the broken system.

Their proposal, which consists of three recommendations, revolves around removing cannabis from Schedule 1 of the Controlled Substances Act. While Stephen Saltzburg, who spoke in favor of Resolution 104 during the meeting in San Francisco, claimed that the organization neither “endorses nor condemns” cannabis legalization, the resolution would, if enacted, go a long way towards helping the industry grow, legally.

“The reason I think this is significant is because the ABA is traditionally so conservative,” Keith Stroup, the founder of NORML and a veteran public-interest attorney, told Leafly. “I’m thrilled to see it. It seems to be they did a pretty thorough job. I thought all three recommendations were right on.”

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Big Beef with the Controlled Substances Act

At its core, Resolution 104 presents an argument against the validity of the Controlled Substances Act, which has classified marijuana as a Schedule 1 drug—meaning it has no medical use and is easily abused—since it was passed into law in 1970.

The first recommendation in the resolution calls for states where cannabis is legal to have the ability to opt out of the Controlled Substances Act. That would render cannabis legal in those states and help to end the current “stalemate” between state law and federal law.

“The federal government should essentially defer” to legal states, Saltzburg argued, speaking to his peers in San Francisco. As long as people in a legal state comply with state law, he said, they wouldn’t be in violation of federal law.

Banking Reform, Too

This recommendation, if enacted, would also enable businesses to utilize the services of large national banks, which currently refuse to open accounts for cannabis and cannabis-related companies.

Banking regulation reform has become a hot topic recently, especially after Sen. Mike Crapo (R-ID), the chairman of the US Senate banking committee, signaled he would be open to finding a solution to the issue, perhaps through the bipartisan SAFE Banking Act.

“Marijuana businesses could obtain banking and legal services, deduct their reasonable business expenses when computing their federal tax liability, obtain federal protection for their trademarks, avoid civil RICO liability, and so on,” read the report that accompanied the ABA resolution.

“Banks are afraid of the feds,” Saltzburg pointed out, “and this Justice Department hasn’t made things any easier for them.”

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Just Deschedule It

The related second recommendation of the resolution calls on Congress to either reschedule or completely deschedule cannabis from the Controlled Substances Act. Until that happens, the ABA argues, large-scale cannabis research cannot be conducted.

“The FDA cannot remove it without massive blind studies that demonstrate that it has a legitimate medical job to do,” Saltzburg pointed out in San Francisco. “You can’t do massive blind studies because everyone who does them is afraid they’re gonna get prosecuted!” he added, his voice rising.

“Without saying it has no danger, most people realize it’s not as dangerous today as we feared it once was,” he said.

No More ‘Flying Blind’

The third and final recommendation builds on the second, calling for more scientific research regarding “the efficacy, dose, routes of administration, or side effects of commonly used and commercially available cannabis products.”

“We ought to not have states flying blind, the federal government flying blind,” Saltzburg said. “It might lead us to regulate it more or regulate it less. We have no position on that, but by god research would be good.”

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Will Anything Come of Resolution 104?

It’s unclear to what degree the resolution will impact cannabis policy in the United States. NORML’s Keith Stroup said he’s optimistic that the resolution will send a bold message to lawmakers across the country.

“When the Bar Association gets behind something, for a lot of elected officials, many of whom are lawyers themselves, it gives that position credibility that it wouldn’t otherwise have,” he said. “That’s certainly true with marijuana policy.”

Representatives from the ABA—which boasts over 400,000 members— declined to explain whether the organization’s government affairs office, which is able to lobby on behalf of its many policies, will take an active stance on cannabis. But Stroup, for one, is hopeful that they will engage with like-minded lawmakers in Washington like those in the growing Congressional Cannabis Caucus.

“I would think now that they’ve endorsed these positions, the ABA surely would send someone to those meetings,” he said. “I would certainly hope so.”

Max Savage Levenson's Bio Image

Max Savage Levenson

Max Savage Levenson likely has the lowest cannabis tolerance of any writer on the cannabis beat. He also writes about music for Pitchfork, Bandcamp and other bespectacled folk. He co-hosts The Hash podcast. His dream interview is Tyler the Creator.

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  • Red Starnes

    The Feds want to control everything that keeps the Just-us System rolling along and the revolving door to prison turning.

  • familyguy

    The ABA makes sense of things and I hope it is effective. The country is in bad need of a national policy de scheduling seems the correct way to go.

  • YearofAction

    What is the ABA’s consensus about first reconstructing the malformed federal definition of marijuana to make it uphold the Constitution?

    There only needs to be three minor changes to the current definition:

    1. Replace the racist term “marihuana” with its anglicized homonym “marijuana”.

    2. Reveal the long adumbrated, actual meaning of marijuana by clearly describing how marijuana is actually derived from cannabis.

    3. Explicitly preserve the legitimate federal prohibitions that control the undesired proliferation of marijuana itself.

    Altogether, these changes will establish a perimeter of limited federal prohibitions that surround a secure interior region of legal uses, by carefully descheduling cannabis to restore the rights of States and citizens to control cannabis in conformance with the 2nd, 9th, 10th, and 14th Amendments, regardless of the Scheduled status of marijuana itself, like this:

    (16) The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L., which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company, and such smoke is prohibited to be inhaled by any child or by any person bearing any firearm, as is the intake of any part or any product of such plant containing more than 0.3% THC by weight unless prescribed to such child by an authorized medical practitioner.

    After the federal definition is reconstructed to uphold the Constitution, then the adulterated medical value that marijuana actually derives from cannabis can be separately evaluated to determine whether to also deschedule marijuana, or to merely reschedule that “other substance”.

    In either case, the straightforward reconstruction of its definition will restore protections for local cannabis growers, establish sensible restrictions to protect children, and establish minimal rules to make gun owners be part of a Well Regulated Militia, with plenty of room for supplemental state level regulations. That is the value of putting it all there in the reconstructed definition, where it should be

    Some people may think the changes are controversial, but the controversy should actually be about the resistance to literally reconstructing the malformed definition to make it uphold the Constitution. That is why it is important for people to contact our members of Congress about reconstructing this malformed definition from the Farm Bill of 2018 that begs the question, What is “all parts of the plant”, and simultaneously “does not include the mature stalks”?:

    (16)(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.

    (B) The term “marihuana” does not include (i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.