Controlling Marijuana: A Brief History

The historical, legal and public-policy details surrounding marijuana and the Controlled Substances Act (CSA) are interesting for various reasons, but they obscure a simple truth, a truth that gets lost in the technicalities of the administrative rule-making process and decisions rendered by the federal courts.

The simple truth is this: Marijuana can be, and is, grown everywhere in the United States. Thus, the CSA—which attempts to use law enforcement to govern the production of controlled substances, to create a closed and tightly monitored manufacturing and distribution system—has not and cannot work with marijuana. Eventually, this revelation will sink in and federal officials, policy-makers and legislators will abandon the CSA and replace it with some other regulatory structure. And any attempt to evade this lesson of history by trying to prolong the use of the CSA to regulate marijuana will end in failure, because the widespread nature of marijuana cultivation is a stubborn, powerful and inescapable fact.

Marijuana was legal in the United States in the early 20th century. Law enforcement became concerned about its use, especially by immigrants and minorities, and pushed for state laws against it in the 1920s. The first national prohibition law addressed the sale of cocaine and heroin, otherwise known at the time as “narcotics.” The Harrison Narcotics Tax Act was enacted in 1914 and narrowly survived a Supreme Court challenge in 1919 (United States v. Doremus). The mechanism for regulating narcotics was a prohibitive tax. However, the Supreme Court’s decision in favor of the law was based on the determination that the legislation would raise revenue from the legal prescription of narcotic drugs. The fact that the legislation effectively prohibited nonmedical sales of narcotics was just incidental.

Attempts to prohibit marijuana relied on encouraging state laws until the 1930s, when officials asked Congress to enact federal marijuana prohibition by way of a prohibitory tax—a levy so great as to render any commerce unprofitable. The result was the Marihuana Tax Act of 1937. This approach provided a legal basis for prohibition for the next 30 years. It fell apart when Timothy Leary took a trip to Mexico.

In 1965, the professor and psychedelic activist Timothy Leary and a small group of family and friends planned a drive from New York to Mexico; however, the group was denied entry into Mexico. When Leary turned around and drove back over the International Bridge to the United States, a US Customs official searched his car, found some pot and charged Leary under a section of the Marihuana Tax Act of 1937. Leary took his case to court (Leary v. United States) and successfully argued that the legislation was unconstitutional because it required him to incriminate himself—by paying a tax on the transfer of marijuana, he would be exposing himself to further criminal penalties under state and federal law. Thus, the law violated his privilege against self-incrimination. The Supreme Court agreed with Leary’s argument and, in 1969, issued a unanimous decision striking down the Marihuana Tax Act as unconstitutional.

Meanwhile, during the 1960s, there were two federal commissions taking a look at law enforcement and federal criminal laws. There was also discontent in both Congress and the law-enforcement community regarding the Bureau of Narcotics and Dangerous Drugs—the predecessor to the Drug Enforcement Administration (DEA)—which was tasked with enforcing prohibition. These factors, along with the Leary decision by the Supreme Court, opened the door to a new approach for federal drug-law enforcement. The result was the passage of the Controlled Substances Act in 1970.

The CSA is pretty simple, actually. There are five schedules for drugs that have addictive properties, referred to in the legislation with respect to their potential for abuse. Some of these drugs have legitimate medical uses, so this had to be balanced against their potential for illegal sales. The greater the potential for abuse, along with a lack of accepted medical use, resulted in stricter regulatory control for each drug. The CSA’s goal was a closed system for drugs with medical use and prohibition for drugs with no accepted medical use. Schedule I, the most restricted category, was for drugs with no medical use and the greatest potential for abuse.

There was a dispute in Congress over how drugs were to be placed in any of the five schedules. It was resolved by the creation of a process, known as “scheduling,” in which health agencies would make the necessary scientific determination of each drug, and federal authorities (i.e., the Drug Enforcement Administration) would enforce the regulatory laws based on those scientific decisions.

Here is where two new actors take the stage with important roles in this story. The first is an official with the Department of Health, Education and Welfare (HEW) by the name of Roger Egeberg, MD. The second is the Chevron Corporation. Both play a role in marijuana’s placement under Schedule I, as well as why it has been impossible for various litigants over the years to have it removed.

Schedule I drugs must fit three criteria. They must have the greatest potential for abuse, they must be unsafe for use under medical supervision and they must not have an accepted medical use in the United States. But who makes those determinations? Under the statute, they are made by way of a scientific review by what is now the Department of Health and Human Services (HHS, the successor agency to HEW, identified in the original statute as the agency handling the science). Congress, however, made the initial determination to place marijuana under Schedule I.

Egeberg, the assistant secretary for health and scientific affairs at HEW, wrote to Congress on August 14, 1970, to support the placement of marijuana under Schedule I. Egeberg noted that marijuana did not fit the criteria for Schedule I, or even Schedule II (for drugs with a high abuse potential but accepted medical use). Egeberg wrote, “Some question has been raised whether the use of the plant itself produces ‘severe psychological or physical dependence’ as required by a Schedule I or Schedule II criterion… [O]ur recommendation is that marihuana be retained within Schedule I, at least until the completion of certain studies now underway to resolve this issue.” After all, Egeberg reasoned, scheduling could just be changed later if need be.

This, however, is where Chevron comes in, as the company was a key litigant in a completely unrelated legal action that created an important precedent, which affected later attempts to change marijuana’s status under the CSA.

When Congress passed the CSA, changing the schedule of a substance or removing it from scheduling altogether became subject to standard administrative procedures, established by Congress in the Administrative Procedures Act of 1946. Under the CSA, any interested party could file a petition with the Department of Justice (and the Drug Enforcement Administration, which has been designated by the Justice Department to handle this) to initiate rescheduling proceedings. The petition needs to make a scientific argument with respect to eight criteria established by the CSA, and must present new or recent scientific evidence not considered in a prior proceeding. The DEA reviews the petition to see if it meets this burden and then refers it to HHS for a scientific review. HHS conducts its review and issues recommendations to the DEA, and the DEA then issues a decision. Any party affected by the decision with standing (a legal term that distinguishes between interested and affected parties) can then file an appeal with the federal courts to subject the DEA’s decision to judicial review.

There have been five rescheduling proceedings since the CSA was enacted, and all of them have failed. Each one has some unique and interesting attributes and all of them make a scientific argument that marijuana does not meet the criteria for a Schedule I drug—but none of that really matters legally. Why? Because of a case involving Chevron decided by the Supreme Court.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. was decided in 1984. It concerned regulations enacted by the Environmental Protection Agency and subsequent litigation brought about by the Natural Resources Defense Council and later challenged by Chevron. The issue is a simple one: Who decides how to interpret language in laws providing the government with regulatory authority? When it comes to the CSA and what the law means by accepted medical use and abuse potential, the Chevron decision is why no one can force the government to reschedule or even de-schedule marijuana (remove it from scheduling altogether).

In this case, the Supreme Court decided that if a law is clear, an agency must follow the law. But when a law is subject to interpretation, the regulatory agency gets to make its own determination of what standards, criteria or concepts it uses to decide on regulations. In other words, the Chevron decision allows the DEA to determine how to decide if a drug has an accepted medical use in the United States. The only limit on this discretion is that the determination and/or process by which it is reached cannot be unreasonable, arbitrary or capricious. The DEA has decided that, aside from all other factors, it will not recognize an accepted medical use of marijuana without controlled scientific studies demonstrating its effectiveness, which, of course, the federal government tightly controls.

Because of the significance of the Chevron decision in allowing the DEA considerable discretion in interpreting the CSA, there is really only one path to changing the scheduling status of marijuana. But it is not something marijuana-law reformers would be happy with. To evaluate this scenario, it is necessary to once again return to the original idea behind the CSA, which is to create a closed manufacturing and distribution system.

In this context, “closed” means that a drug is manufactured and distributed exclusively for medical use. Simply put, this means that marijuana would become a tightly controlled and thus highly profitable pharmaceutical product. Any company that would invest in the controlled studies required to reschedule marijuana—and it would require considerable investment capital—would only do so to obtain a return on its investment. The product tested, a specific formulation of marijuana, would become a patented commodity, and the CSA would not only protect that investment but also facilitate a significant profit as a return on that investment. Basically, the only way marijuana will be rescheduled under the CSA would be to grant a pharmaceutical company exclusive rights to profit from its manufacture and distribution. Obviously, this is not an ideal solution.

This is where the story returns to the simple truth with which it began. Scholar and policy analyst John Kaplan wrote in 1974 about the difficulties in classifying drugs for legal control in Controlling Drugs: International Handbook for Psychoactive Drug Classification. Kaplan argues for what is now called harm reduction: for policies that increase benefits and reduce social costs. Kaplan also explains the importance of two variables that affect the success of control models. The first is the “degree users want the drug.” The second factor, and the key one here, is “technology of drug production and consumption.” Kaplan points out that “where the technology of drug production and distribution is not difficult to overcome, drug control will be very difficult.” Because it is not difficult to grow or consume marijuana, controlling it will be very difficult. This is even more true today than it was 40 years ago when Kaplan made this observation.

Just as the Marihuana Tax Act of 1937 became obsolete in the late 1960s and was replaced, the Controlled Substances Act of 1970 has become obsolete as a regulatory tool for marijuana and it too will be replaced. Rescheduling marijuana is no longer an option. The term “de-schedule” is gaining popularity as a mechanism to remove marijuana from the CSA, which is really the only viable option for a new regulatory framework. However, the country needs a new reference point, a new approach. “De-schedule” is a technically accurate term for what needs to happen, but it is one that frames the issue in part in terms of the CSA and the current process of asking the DEA to act administratively to remove marijuana from the schedules. That’s the wrong way to make this happen. This is a job for Congress, and this new regulatory framework for marijuana needs to be created through congressional legislation. It’s that simple. Whether Congress is up to the challenge of regulating cannabis fairly and reasonably remains to be seen.