Pot Matters: The Rescheduling Trap

Eric Holder, the former Attorney General of the United States, now believes that marijuana should be rescheduled—out of Schedule I of the Controlled Substances Act (CSA) and into Schedule III—according to an interview he gave to Frontline.

Too little, too late, impractical, and highly irresponsible. 

This author, along with HIGH TIMES, fought for over 15 years to remove marijuana from Schedule I and have it rescheduled only to be  opposed by Attorney General Holder and the Obama administration. Now, both the former attorney general and the president suggest that rescheduling is justified and that it ought to be brought about by way of congressional action, despite Congress granting such legal authority to the president and the attorney general in the specific language of the CSA.

Rescheduling is an 80’s remedy to a 70’s problem whose time has come and gone. 

Marijuana should be removed from the CSA and the jurisdiction of the DEA, and it should be regulated by Congress in a manner consistent with emerging legalization frameworks, both recreational and medical, at the state level. Rescheduling under the CSA would, in theory and practice, represent an attempt to assert DEA authority over medical marijuana and reinstitute prohibition over non-medical use. 

In other words, rescheduling at this point in history is the logical first step in rolling back all state-level legalization of medical and/or recreational marijuana.

The first rescheduling attempt HIGH TIMES and I launched was filed before California’s landmark Proposition 215, providing access to medical marijuana, was approved and enacted.  When it was formulated and submitted, the objective of our rescheduling petition was to get the government to acknowledge contemporary scientific evidence about cannabis, that is, to admit that it did not have a high potential for abuse and that it had an accepted medical use in the United States. If successful, rescheduling in the late 1990s would have enabled the federal government to work with states to provide access to medical marijuana consistent with the provisions of the CSA, as recommended, for example, by the National Institute of Medicine.  

After being rejected the federal courts on a procedural issue, the petition was updated and re-submitted and was eventually rejected by the Obama administration. Their decision was upheld by the U.S. Court of Appeals. Interestingly, former Attorney General Holder now acknowledges that these rescheduling attempts were factually and scientifically accurate.

But soon after this attempt was launched conditions changed with the passage of Proposition 215, and the adoption of medical marijuana legislation throughout much of the United States.

Rescheduling, at this time, would be an attempt to turn back the clock to 1995.

Here’s what advocates of rescheduling don’t like to talk about—every medical marijuana program in the country is in violation of the federal Controlled Substances Act and would still be in violation whether marijuana is a Schedule I or a Schedule III drug.

Some argue for rescheduling because it would make it easier to conduct research on medical marijuana. But legally, the value of research is simply to provide evidence that it should be rescheduled.  

Don’t misunderstand, research on medical marijuana is both needed and will be of great benefit to patients. But the remedy to the CSA restrictions on medical marijuana research, due to its Schedule I status, is to remove marijuana from the CSA and implement reasonable regulations on marijuana’s recreational and medical use and for its production and distribution, according to principles of free market economics.

There is something subtle—and troubling—about Holder’s comments about rescheduling. Several commentators have observed that the Obama administration has the power and authority to reschedule marijuana and have suggested that it is disingenuous to argue that Congress should do it instead. There is more here than meets the eye.

The truth is that the president does not have the power to reschedule marijuana. 

But power and authority are different. 

His administration has such authority, but only by following the procedure set out by the CSA. This means that the Department of Health and Human Services (DHHS) must study the drug and current scientific evidence about it, make a recommendation to the DEA, and then the DEA must make a decision whether or not to reschedule the drug. 

Rescheduling is part of a bureaucratic process, conducted by career civil service employees, and then subject to the opinion of the officials of the two key agencies.

It is nearly impossible for the president and the attorney general to order officials of DHHS and/or the DEA to reschedule marijuana in opposition to agency reviews that recommend otherwise. They may have the authority to do this, but having the power to do it is another matter. A regulatory decision can be overturned in federal court if it is arbitrary or capricious, meaning done without adherence to or in contradiction of established procedure. If the DEA doesn’t want to reschedule, and the president or attorney general orders otherwise, the court of appeals will overturn the decision as arbitrary and capricious.

Simply put, by advocating congressional action to reschedule marijuana Obama and Holder are implicitly acknowledging that they did not have the power to compel the DEA to reschedule marijuana.

What is one to make of this? 

Well, this is no surprise to anyone who has studied the history of marijuana prohibition. Federal, state and local law enforcement love prohibition, and they are not, under any circumstances, going to cooperate with attempts to end it. 

Why does prohibition continue to be the policy of the federal government in the United States?

Because the DEA wants it that way, and only Congress has the power to override them. This is another reason why rescheduling is a scam and a sham. The DEA is the problem with prohibition and national marijuana laws, not the solution. Rescheduling does not do anything to address this problem and indeed may even make it worse.

(Photo Courtesy of the Washington Post)