Make Marijuana Effectively Legal: By Rescheduling Cannabis as a Less Dangerous Narcotic, the Next President Can Upend the Drug War and the Damaging Effects on Communities of Color

By Gurley, Gabrielle | The American Prospect, Fall 2019 | Go to article overview

Make Marijuana Effectively Legal: By Rescheduling Cannabis as a Less Dangerous Narcotic, the Next President Can Upend the Drug War and the Damaging Effects on Communities of Color


Gurley, Gabrielle, The American Prospect


The dissonance between state and federal marijuana laws has created a legal jumble of bad policies and work-arounds. Statehouses, Congress, and the White House have created a labyrinthine world of marijuana rules and rulemaking. The next president however, can clean up much of this mess with the stroke of a pen.

The wave of state-level marijuana liberalization over the last decade represents one of the more robust assertions of federalism in American history--all the more remarkable considering it concerns a drug linked to ethnic and racial stereotypes (despite centuries of medicinal use). Eleven states and the District of Columbia have legalized recreational marijuana, with seven states making the move just since 2016. Thirty-three states (two-thirds of the 50) have legalized medical marijuana. Arizona and Florida may see questions about marijuana legalization on the 2020 ballot.

No such changes have been made on the federal level yet, however, despite the efforts of some members of Congress. It does not matter "whether you agree or disagree with decriminalization, legalization, or medicinal [use], states are going to do this," Democratic Representative Barbara Lee of California, who has introduced three marijuana bills and co-chairs the Congressional Cannabis Caucus, tells the Prospect. "This is not going to go backwards."

Given the rising acceptance of marijuana use, the next president will have unprecedented public support to end the federal policies that fostered decades of ill-fated drug enforcement strategies, including the so-called "war on drugs," that have disproportionally affected African Americans and Latinos. A potential Democratic administration would be well placed to dismantle marijuana prohibitions, especially if Democrats maintain their numbers in the House and can gain control of the Senate.

But if control of Congress fails to materialize, a Democratic president can still make progress on marijuana.

The executive branch can exercise its administrative powers to reschedule marijuana by moving the drug to a less restrictive tier of controls. Marijuana is illegal under the Controlled Substances Act: It falls into Schedule I, the highest of the five tiers of regulation for drugs with a strong potential for abuse and no currently accepted medical use, a distinction that marijuana inexplicably shares with heroin and LSD.

These prohibitions limit scientific and medical research and clinical trials on marijuana--even though more than half of the states have approved the drug for medical use. As Washington State University sociologist Clayton Mosher, co-author of In the Weeds, a marijuana policy history, notes, cannabis opponents "use anecdotes to prove that marijuana is a dangerous drug." But they simultaneously claim that supporters' anecdotes arguing cannabis "has medicinal uses are not scientific evidence."

Laboring under these prohibitions, researchers also must secure federal permission for testing and adhere to restrictive protocols before investigating a drug now used by many people with cancer, epilepsy, and other illnesses and conditions. Meanwhile, cannabis businesses cannot deduct ordinary business expenses from their federal taxes. Treasury Department regulations mean banks largely avoid the sector, leaving many marijuana businesses in the multibillion-dollar industry dependent on cash transactions and at risk for crime.

The attorney general is the main actor in administrative rescheduling. The president can direct the AG to review a drug's status, or the AG can act independently to initiate a scheduling review. The secretary of health and human services or outside groups--medical associations, state or local entities, or individual citizens--can also petition the AG to begin the review.

The AG must consult the Food and Drug Administration on medical and scientific findings about the drug, public-health risks, and potential for abuse. Under the statute, the HHS secretary's scientific and medical recommendations are binding on the AG. …

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