Can Kentucky’s Governor Legalize Cannabis —And What About President Biden?

Partly the South, partly the Midwest, Kentucky is an increasingly unique anachronism: one of the just 14 states left in the country who won’t legalize cannabis—medical nor adult-use. This remains so despite the state House passing a bill legalizing medical cannabis for sick people earlier this year.

To solve this impasse, Gov. Andy Beshear has vowed to take action into his own hands. One of only two Democrats in statewide office in Senate Minority Leader Mitch McConnell’s home state, in April, Beshear promised to bypass the obstructionist state legislature and take executive action to legalize medical marijuana—if that’s what it takes, and if he has the constitutional authority to do so, questions he hopes to sort out as soon as this summer.

Those are big ifs indeed. And they lead to another, even larger if: if Beshear decides to go ahead and legalize cannabis by fiat, and if other chief executives around the country are similarly inspired and follow suit—couldn’t President Biden do the same and simply legalize cannabis nationwide with a stroke of his pen?

It’s an interesting question of both constitutional law as well as practical politics—and the answer isn’t as straightforward as some legalization advocates might like. It’s some combination of, “maybe, sort of, not really—and it’s probably not what you actually want, anyway.”

State of Exception

Beshear’s office didn’t respond to a request for comment and for any updates on his thinking or his timeline. But according to at least one observer—Jim Higdon, the co-founder of Cornbread Hemp, a Kentucky-based hemp company and the son of a longtime state lawmaker, who authored an opinion column in the Cincinnati Enquirer about this very subject—Beshear can absolutely tell statewide police to stand down and to compel state lawmakers to come into work, and make them look like do-nothing clowns if (or when) they don’t.

As Higdon points out, like most everywhere else, medical cannabis is popular in Kentucky. Yet the citizens don’t have access due to the undemocratic action of a powerful state lawmaker, state Senate President Robert Stivers, who refused to let the House bill even stand a floor vote in the Senate.

Stivers has already publicly said he believes Beshear cannot legalize cannabis by executive action. However, as Hidgon notes, Beshear could absolutely ground Kentucky State Police helicopters, and limit law enforcement’s ability to enforce any prohibitions on medical cannabis, thus bringing about de facto legalization.

Legal experts contacted by Cannabis Now agree with this analysis. Beshear can’t legalize cannabis by himself, but he can make it less illegal—or, more accurately, he can discourage enforcement of the law, to the point where it doesn’t matter much what laws about legal marijuana are on the books.

“The simple answer is, there’s absolutely nothing a governor can do on his or her own to legalize something that the state legislature has made illegal,” said Douglas Berman, a professor of law at the Ohio State University’s Moritz College of Law and the executive director of the school’s Drug Enforcement and Policy Center.

“What he can do is use a variety of tools at his disposal to no longer enforce the law,” he added, though even that would be a significant step: to Berman’s knowledge, an American governor has never instructed state law enforcement to stand down in this way.

However, it’d be broadly consistent with how police already operate: using discretion to decide when and where it’s feasible and practical to enforce the law. Take a tailgate at, say, a University of Kentucky Wildcats football game. Chances are such events are full of college students under 21 drinking alcohol—that is, flagrant and ongoing violations of the law. Yet little action is taken to stop this, and with good reason: Who cares?

Politics and Patients

If Beshear were to do this, the act may be more political than legal. Let’s say Beshear did take action. Then let’s say police and prosecutors went rogue and refused (whoever heard of such a thing?) such an executive action. Even if they did, Beshear would be putting voters on notice that it’s certain lawmakers who are preventing them from accessing a very popular product that has proven medical benefits. That, in turn, would make the next gubernatorial contest a de-facto referendum on cannabis, which it’s already shaping up to be.

Beshear is up for reelection in 2023. His top challenger thus far seems to be Daniel Cameron, the Republican state attorney general. A right-wing Black man who was endorsed by former President Donald Trump (and who was supposedly on Trump’s short list of Supreme Court nominees), Cameron has already gone on record saying he opposes medical marijuana.

If cannabis is as popular as all the polls tell us, that could blow up in his face. Either way, observers fully expect cannabis to become a major issue in the next governor’s race—an issue that Beshear has the power to force in various ways, even if he doesn’t have the constitutional power to wave his smartphone like a magic wand and make legal marijuana a reality in Kentucky.

OK, so what about POTUS? In this case, scholars say, whatever President Biden could do is still less expansive than what Congress could do—and what’s within Biden’s power probably isn’t what you even want.

Executive Legalization isn’t Really Legalization

A more popular question in the days before serious senators endorsed federal cannabis legalization, presidential executive action on legal marijuana has been studied to death, but it bears repeating here: according to the Congressional Research Service, though the president can tell Congress to do something, and though he can appoint legalization-friendly officers in key offices such as the Department of Justice and the Department of Health and Human Services and tell them to legalize, “it doesn’t appear that the President could directly deschedule or reschedule marijuana by executive order.”

And, as Vanderbilt University law professor Robert Mikos argued in a 2021 essay published in the University of Cincinnati Law Journal, any executive action on cannabis is likely to trigger both legal challenges in the courts as well as an uncomfortable discussion about presidential power. Given Biden’s love of our cherished norms and institutional traditions, the current president seems highly unlikely to buck convention.

And you might not want him to.

You may have noticed that while federal law bans legal marijuana in all its forms and for all functions, neither Drug Enforcement Administration agents nor the 101st Airborne Division are breaking into the country’s thousands of legal cannabis businesses to put a stop to the many and continuous violations of federal law.

Presidential action might amount to rescheduling or descheduling, which would be a much more modest step than proposals in Congress such as the Marijuana Opportunity, Reinvestment and Expungement Act. Imagine a world in which pharmaceutical companies only have dominion over cannabis, and where old convictions are still on the books. That’s more possible in an executive action scenario than wall-to-wall cannabis legalization—which, by the way, wouldn’t alter state laws such as Kentucky’s.

Either way, with Congress still stuck in obstruction precisely like the Kentucky legislature, yet undeniably closer to cannabis legalization than even in the recent past, a Biden executive order might commit the sin of doing too little when much more is within reach.

“It’s not wrong to say that small wins sometimes slow momentum for big wins or even reverse progress,” OSU’s Berman said. Legalization may have to just sit and wait until tides turn, in Kentucky and elsewhere. At least that’s where they’re trending.

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