The MORE Act: House Plans Historic Vote on Federal Marijuana Legalization

The MORE Act: House Plans Historic Vote on Federal Marijuana Legalization

Legal Sidebari
The MORE Act: House Plans Historic Vote on
Federal Marijuana Legalization
November 25, 2020
In December 2020, the House of Representatives plans to vote on H.R. 3884, the Marijuana Opportunity
Reinvestment and Expungement Act of 2019 (MORE Act). The MORE Act is also pending before the
Senate. Among other things, the MORE Act would remove marijuana from the schedules of controlled
substances under the Control ed Substances Act (CSA), legalizing many marijuana-related activities at the
federal level. Commentators have noted that a vote on the MORE Act would be the first time the full
House voted on a proposal to deschedule marijuana. This Legal Sidebar briefly summarizes the legal
status of marijuana in the United States. It then outlines key provisions of the MORE Act before
discussing selected considerations for Congress related to the bil .
The Legal Status of Marijuana
Under federal law, the plant Cannabis sativa L. and products derived from that plant are general y
classified as marijuana, with a couple of exceptions. (The statute uses an archaic spel ing, “marihuana,”
that was more common when Congress enacted the CSA in 1970, but this Sidebar uses the currently
accepted spel ing, “marijuana.”) One key exception relates to hemp, a legal classification that includes
cannabis and cannabis-derived products containing very low levels of the psychoactive cannabinoid delta-
9 tetrahydrocannabinol (THC). Hemp is not a controlled substance subject to the CSA, though it remains
subject to other federal laws.
Congress classified marijuana as a Schedule I controlled substance when it enacted the CSA, meaning
that marijuana is subject to the most stringent level of federal control. Congress’s decision to place
marijuana in Schedule I reflects a legislative finding that marijuana has a high potential for abuse, no
currently accepted medical use, and “a lack of accepted safety for use . . . under medical supervision.”
Under the CSA, it is legal to manufacture, distribute, and possess Schedule I controlled substances such
as marijuana only in the context of federal y approved research studies, subject to exacting regulatory
requirements designed to prevent abuse and diversion. Unauthorized activities involving marijuana are
criminal offenses; depending on the activity at issue and the amount of marijuana involved, such offenses
may give rise to large fines and lengthy prison sentences.
In sharp contrast to the strict federal control of marijuana, many states take a more permissive approach to
marijuana regulation. While every state once banned marijuana, in recent decades many states have
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repealed or limited state marijuana prohibitions. As of November 2020, al but three states have changed
their laws to permit at least some use of cannabis for medical purposes. In addition, 15 states and the
District of Columbia have removed state prohibitions on recreational marijuana use by adults age 21 or
older.
Notwithstanding these changes to state laws, any activity involving marijuana that is not authorized under
the CSA remains a federal crime anywhere in the United States, including in states that have purported to
legalize medical or recreational marijuana. Thus, when states “legalize” a federal y controlled substance
such as marijuana, the sole result is to repeal or limit criminal controls of the substance under state law.
The Department of Justice (DOJ) deprioritized prosecution of individual activities involving state-legal
marijuana under the Obama Administration. But, in 2018, DOJ issued guidance reaffirming the authority
of federal prosecutors to exercise prosecutorial discretion to target federal marijuana offenses “in
accordance with al applicable laws, regulations, and appropriations.” Various practical considerations and
appropriations limitations prevent DOJ from prosecuting al violations of the CSA. However, even absent
criminal prosecution or conviction, individuals and organizations engaged in marijuana-related activities
that violate the CSA—including participants in the state-legal cannabis industry—may face other legal
consequences arising from the federal prohibition of marijuana. These collateral consequences may affect
areas such as financial aid eligibility, gun ownership, bankruptcy, tax deductions, and immigration.
Overal , the growing gap between federal and state marijuana regulation has led to confusion about the
legal status of marijuana and raised numerous legal and policy issues.
The MORE Act
The MORE Act aims to “decriminalize and deschedule cannabis, to provide for reinvestment in certain
persons adversely impacted by the War on Drugs, [and] to provide for expungement of certain cannabis
offenses.” Although the expungement provisions focus on federal offenses, the bil general y defines a
“cannabis offense” to include both federal criminal offenses that are no longer punishable pursuant to the
MORE Act and state criminal offenses that are no longer punishable (or that are designated as lesser
offenses or subject to a reduced penalty) under any “State law authorizing the sale or use of cannabis.”
Key provisions of the MORE Act include the following:
 Federal legalization of marijuana. The MORE Act would remove marijuana and THC
from the CSA and direct the Attorney General to promulgate a rule removing those
substances from the schedules of controlled substances. The bil would apply
retroactively, requiring expungement of “each conviction or adjudication of juvenile
delinquency for a Federal cannabis offense” entered by a federal court before the MORE
Act’s enactment. It appears the MORE Act would require expungement of al CSA
offenses involving cannabis, ranging from possession of smal amounts of marijuana for
personal use to large-scale trafficking. Individuals convicted of cannabis offenses in
addition to other federal crimes would be resentenced as if they had been convicted only
for the non-cannabis offenses.
 Removal of some collateral consequences for marijuana-related activities. As noted
above, federal law currently imposes various collateral consequences arising from
marijuana’s Schedule I status. The MORE Act would limit those consequences by
removing marijuana from Schedule I and would also expressly prohibit the federal
government from denying certain benefits based on a would-be recipient’s “use or
possession of cannabis, or on the basis of a conviction or adjudication of juvenile
delinquency for a cannabis offense.” Specifical y, it would prohibit the denial of any
“Federal public benefit”—a defined term that includes federal loans, grants, and contracts
as wel as benefits such as welfare, unemployment, and food assistance—or any “benefit
or protection under the immigration laws.” The bil would also bar certain federal y-

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funded programs from declining to provide services or financial assistance to an
otherwise eligible smal business because the business operates in the cannabis industry.
 Cannabis tax and grant programs. The MORE Act would impose a five percent tax on
cannabis products (excluding prescription medications derived from cannabis). Revenues
from the tax would be appropriated to several grant programs:
 A Community Reinvestment Grant Program providing services for “individuals
most adversely impacted by the War on Drugs,” including job training, health
education, mentoring, literacy programs, and substance use treatment programs;
 A Cannabis Opportunity Program providing funds for eligible states to make
loans to assist smal businesses in the cannabis industry that are owned and
controlled by social y and economical y disadvantaged individuals; and
 An Equitable Licensing Grant Program providing funds for eligible states to
develop and implement equitable cannabis licensing programs that “minimize
barriers to cannabis licensing and employment for individuals most adversely
impacted by the War on Drugs.”
 Cannabis industry participation. The MORE Act would direct the Bureau of Labor
Statistics to gather demographic data about cannabis business owners and employees.
Considerations for Congress
The MORE Act raises multiple legal considerations related to marijuana regulation and controlled
substances law more general y. First, the MORE Act would decriminalize marijuana at the federal level
but would not directly alter the status of cannabis under state law. Under the CSA, states are free to
regulate substances that are not subject to the CSA or other federal law provided there is no “positive
conflict . . . such that the [CSA and state law] cannot consistently stand together.” Several states currently
ban the use of marijuana for both medical and recreational purposes. Others permit the use of some
cannabis products for medical purposes while banning recreational use. The MORE Act would not alter
those state legal regimes; nor would it affect prior state law criminal convictions for cannabis-related
offenses. Thus, if the MORE Act became law, it could create a new divide between federal and state
law—essential y the reverse of the current marijuana policy gap, since federal marijuana law would
become less strict than some state laws. The MORE Act could also highlight the inconsistency between
marijuana laws in different U.S. jurisdictions by repealing the uniform federal prohibition and leaving in
place a patchwork of varying state laws.
Congress may be content to al ow states to experiment with varying approaches to marijuana regulation.
In the alternative, Congress might prefer a more uniform approach, whether that approach is to
criminalize or decriminalize marijuana, or something in between. However, while Congress can pass
legislation creating a uniform federal policy, there are limits to its ability to affect state law. Congress
lacks the constitutional authority to alter state criminal law, though it is possible Congress could preempt
state law through Commerce Clause legislation (as it did in the 2018 farm bil with regard to the interstate
transportation of hemp). As an alternative, Congress might be able to encourage states to change their
laws through the use of the spending power. Funding conditions in the MORE Act might indirectly
encourage states to minimize state law criminal consequences related to cannabis. The Act would make
certain federal funds available only to “eligible States” that have taken steps to expunge cannabis
convictions automatical y and eliminate “penalties for persons under parole . . . or other State or local
criminal supervision for a cannabis offense.” Congress could also invoke its spending power to encourage
states to regulate marijuana more stringently, and has previously used the spending power to shape drug
policy in targeted ways. For instance, since the District of Columbia decriminalized marijuana in 2014,

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Congress has annual y enacted an appropriations rider that prohibits the District from expending federal
funds “to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any
schedule I substance under the Controlled Substances Act[.]” While that rider applies only to the District
of Columbia, other appropriations riders more general y prohibit the use of any federal funds “to legalize
or otherwise reduce penalties associated with” any Schedule I controlled substance or, with limited
exceptions, “for any activity that promotes the legalization” of any Schedule I controlled substance.
Second, the MORE Act amends the CSA but does not address other existing federal regulatory regimes
that apply to cannabis. For instance, the Food and Drug Administration (FDA) currently regulates certain
cannabis products under the Federal Food, Drug, and Cosmetic Act (FD&C Act). The FD&C Act applies
to al prescription drugs and prohibits the “introduction or delivery for introduction into interstate
commerce of any . . . drug . . . that is adulterated or misbranded.” Because chemicals found in cannabis
are used as active ingredients in certain prescription drugs, FDA has taken the position that cannabis and
cannabis-derived compounds including THC and cannabidiol (CBD) are drugs that require FDA approval
before they may be added to foods, sold as dietary supplements, or marketed for therapeutic use.
Nonetheless, unapproved cannabis-derived products, especial y those containing CBD, are widely
commercial y available, and FDA has focused enforcement actions on products that pose the greatest risk
to consumers. If Congress chooses to deschedule marijuana under the CSA, it could also consider whether
to alter the regulatory regime under the FD&C Act. In addition, or in the alternative, Congress could
decide to impose new federal regulations specific to cannabis. As an example, legislation has been
introduced that would impose new federal licensing requirements on marijuana businesses.
Third, it is possible that any legislation relaxing the CSA’s restrictions on marijuana could implicate the
United States’ international treaty obligations. As discussed in greater detail in a recent CRS report, the
United States is a party to drug control treaties including the Single Convention on Narcotic Drugs of
1961 and the Convention on Psychotropic Substances of 1971. Both treaties require signatories to take
various steps to control cannabis, including criminalizing unauthorized manufacture, sale, and possession
and strictly regulating any legal cultivation. The two treaties are not self-executing—meaning that they do
not have the same status as judicial y enforceable domestic law—but failure to abide by its treaty
obligations could expose the United States to international legal consequences. However, it is also
possible that the status of cannabis under the applicable treaties could change. Based on a
recommendation by the World Health Organization, the United Nations Commission on Narcotic Drugs
plans to vote in December 2020 on a proposal to reschedule cannabis under the drug control treaties.
Final y, the MORE Act decriminalizes cannabis at the federal level but does not apply to controlled
substances other than marijuana and THC. Some have cal ed for the general decriminalization of personal
drug use, and in November 2020, Oregon passed a bal ot initiative to decriminalize the personal use of
certain Schedule I and II controlled substances. The same day, District of Columbia voters passed a bal ot
measure placing prosecution for the use and sale of certain psychedelic plants and fungi “among the
Metropolitan Police Department’s lowest law enforcement priorities.” (Both jurisdictions had previously
decriminalized marijuana use for medical and recreational purposes. The 2020 D.C. bal ot initiative was
tailored to comply with the appropriations rider discussed above that limits the District’s ability to
decriminalize Schedule I controlled substances.) The recent reforms in Oregon and the District of
Columbia created a divergence that fal s wel short of the divide between federal and state marijuana
laws. However, current trends suggest that there may be a broader movement toward decriminalizing
controlled substances. Comprehensively addressing such changes is outside the scope of the MORE Act,
but Congress may wish to monitor developments in this area when considering future legislation.

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Author Information

Joanna R. Lampe

Legislative Attorney

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