Why Ilhan Omar’s “Fed Exemption for Hemp” Has No Application Process

21 USC 822(d) has no application process.

 

21 USC 822(d) covers a class of activity, such as religious use of peyote.

 

21 USC 822(d) should be between a state and the federal administration, like it is between that church and the federal administration.

 

There is no application, but a state attorney general could contact the U.S. Attorney General and ask for a waiver.

You have to understand who has the higher authority, a state or a federal administrative official.

 

Most people think Congress authorized that administrative official and because of that the administrative official has the higher authority.

But, Congress did not give that administrative official authority because the authority is only to make a decision on a waiver.

 

If Congress had predetermined the outcome of that decision, then the administrative official would have the higher authority.

 

But that is not what Congress did.

 

So, the state has the higher authority.

 

The decision still might stand if it is consistent with the public health and safety, but a State is going to have a strong presumption of being the better judge of what’s best for the people.

 

So, it could end up in federal court, as it probably should, under federalism.