First, legal scholars seem to mostly agree that the president can use the power of the executive branch to reschedule cannabis. The Controlled Substances Act currently classifies marijuana as a Schedule I drug—more addictive than heroin! Less medical value than cocaine! No medical value, a high potential for abuse, and illegal in all circumstances. (You will notice this hasn’t stopped states from legalizing cannabis, nor has it stopped recreational marijuana from growing into a multi-billion-dollar industry.)
As Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver’s Sturm College of Law,
wrote in a 2016 article, the president can unilaterally
reschedule cannabis, but the president cannot
deschedule.
What’s that mean? Since the Drug Enforcement Administration is part of the U.S. Department of Justice—and part of the executive branch—the president can instruct the attorney general to reclassify cannabis, into a different category of controlled substances.
Moving cannabis to Schedule III or Schedule IV would solve at least one of the marijuana industry’s problems.
IRS Section 280E forbids the sellers of illegal drugs from claiming certain business expenses on their taxes. This prohibition has crippled some businesses and shrunk the margins of almost everyone else.
But rescheduling alone would almost certainly not allow cannabis businesses to use banks. And particularly not if they continued to violate the Controlled Substances Act anyway, which is what all dispensaries in all states would be doing if President Biden rescheduled weed.
All drugs in the Controlled Substances Act that can be bought and sold are done so with DEA licenses, with doctor’s prescriptions. No recreational drug that is legal—tobacco, alcohol—are distributed in this way.
It’s generally understood, then, that rescheduling weed would blow up the marijuana industry’s existing model, of state-licensed businesses that are not pharmacies selling cannabis products, that are not Food and Drug Administration-reviewed and approved, to customers who are not medical patients.
Biden rescheduling cannabis “would only continue the state-federal conflict, and force both state regulators and businesses to completely reconfigure themselves, putting many people out of business and costing states significant time and money,” as Morgan Fox, chief spokesperson for the National Cannabis Industry Association, said in an email on Monday.
So what’s the difference between rescheduling and descheduling, and why can’t the president do it? For the same reasons why the president can’t pass laws or a budget or make war (at least not forever!) without Congress. Rescheduling cannabis, and making other points of law by executive action, is not within the powers of the office.
Descheduling is legalizing marijuana, for real: removing it from the federal government’s list of banned or controlled substances entirely. This would not prohibit the federal government from making laws restricting who can buy or sell the stuff, or in what quantity—a quick review of what the Bureau of Alcohol, Tobacco, and Firearms does is a good reminder of this!—but this is what’s understood as necessary for the cannabis industry’s dream situations: interstate trade, institutional investors, advertising. The works!
And the president cannot do this.
Cannabis prohibition has been challenged in the courts before. And while federal courts have given cannabis businesses some relief—a 2015 ruling in California, for example,
affirmed that the federal government can’t shut down state-legal medical cannabis dispensaries—courts have also
refused to address the scheduling issue.
Most recently, in October, the Supreme Court declined to hear an appeal in
Washington vs. Barr, a petition challenging cannabis’s Schedule I classification that lower courts has also shot down. Advocates have taken this to mean that the courts believe rescheduling is Congress’s job.
“It is Congress that imposed the federal prohibition of marijuana and ultimately it is up to Congress to repeal this destructive and discriminatory policy,” as Keith Stroup, NORML’s legal counsel, said at the time.
There’s also the open question of whether President Biden would expend political capital, testing the power of his office—and the appetite of Sen. Majority Leader Mitch McConnell’s Senate to swallow it—by legalizing cannabis rather than addressing the
flu pandemic or the novel
flu’s economic destruction.
Legally questionable, politically impractical. No, Joe Biden won’t use the powers of the executive branch to legalize cannabis. He could encourage more research. He could issue pardons or commutations, and he could tell the Veterans Administration to ease up on restrictions creating problems for military veterans seeking cannabis. But to legalize, Congress must act.
And for now, it’s still a Congress controlled by some of the same lawmakers who have reliably blocked legalization. That may change, but it won’t be President Joe Biden who does it.
