Marijuana Politics and Schedule I

Bernie Sanders stepped forward last week in favor of removing marijuana from the federal list of controlled substances. It was “news” in that he is the first major candidate to stake this out as a clear policy position. Honestly, though, did any of us think before this that Bernie Sanders, in his heart of hearts, wanted to maintain marijuana as an illegal drug under federal law? Probably not. Still, his campaign got positive coverage out of the news cycle. And the media, which still absolutely loves the marijuana issue, will be able to use this as leverage to keep pushing the other campaigns to articulate a cannabis policy.

Hillary Clinton, and President Obama for that matter, almost certainly need that media pressure and social pressure if they are going to move on these issues. From their public statements, it seems that the current and likely future leaders of the Democratic Party would still prefer that the issue not come up. In his interview with VICE earlier this year, President Obama’s primary issue with marijuana was that young people should be spending their time on more important issues. He was right, to some extent. Marijuana legalization is objectively not as important an issue as addressing climate change, alleviating poverty, ending international armed conflict, etc. But, as President Obama has said in the past, we can “walk and chew gum at the same time.” Marijuana is an issue people like to address because, unlike with climate change and world peace, there is an easy to understand fix: just legalize it.

Which brings us back to Bernie and Hillary. Let’s assume that President Obama is a lost cause for now. If Bernie is elected President, will he be able to actually reschedule marijuana?

There are two ways under the Controlled Substances Act to legalize marijuana. Option one is legislatively. There is extremely little appetite in Congress for this today, and the only thing that would make this type of change possible would be a combination of a President that really pushed on the issue and an election that pushed out some of the old drug war zealots. Option two is to run it through the executive branch in a rule-making process that presents a pretty big challenge itself.

In short, the executive branch requires these steps:

  • Filing of petition with DEA by outsider or by Attorney General
  • Review by DEA
  • Submission to Department of Health and Human Services
  • More review by both HHS and DEA
  • Publication of DEA decision.

This has been tried and the feds have shot it down each time, after waiting 22, 7, and 9 years respectively following the petitions being filed. And depending on your interpretation of international law, the federal government may not actually have the authority to remove marijuana. Under 21 U.S.C. 811(d), the Attorney General can’t propose removing a drug from the federal schedules if U.S. treaty obligations in effect prior to October 27, 1970 mandate that the U.S. control the drug. We became a part of the Single Convention of Narcotics in 1961, and that Convention arguably mandates control of marijuana.

When President Obama said that Congress needed to reschedule marijuana and the media jumped on him for it because they claimed he had the authority, President Obama actually had a point. And yes, there are plenty of ways to interpret the U.S.’s actual enforceable obligations under international drug control treaties, but Congress would absolutely howl about executive overreach if President Obama or a potential President Sanders or President Clinton tried to do an end run around Congress. And legalization would be at risk of courts throwing it out.

If Bernie is going to get elected and implement his plan, he will have his work cut out for him.