Cannabis law and policy

Bloomberg just posted my essay about  the federal response to cannabis legalization in Colorado and Washington State and about the “rescheduling” issue, both of which have been the subject of rather confused debate.

Short version: No, the law doesn’t require the feds to shut down the Colorado and Washington State initiatives, and “rescheduling” cannabis would be a mostly pointless exercise; it’s much more important to remove bureaucratic barriers to medical research.

That essay doesn’t include one item on which the discussion has been especially confused: the claim that the President, by himself, has the power to reschedule. In fact, the Controlled Substances Act gives that power to the Attorney General, and requires that the AG get medical advice from the Secretary of HHS and take that advice as authoritative.  The AG has delegated his responsibility to the DEA Administrator, and the HHS secretary has delegated hers to the Assitant Secretary for Health.

Those powers are not arbitrary:  the law says that rescheduling requires an “accepted medical use,” and the courts have held that to mean the satisfaction of each of five criteria:

                        a.    the drug’s chemistry is known and reproducible;

                        b.    there are adequate safety studies;

                        c.    there are adequate and well-controlled studies proving efficacy;

                        d.    the drug is accepted by qualified experts; and

                        e.    the scientific evidence is widely available.

[Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994)]

Arguably, the AG and HHS Secretary could decide to change that legal standard; the courts, having deferred to administrative discretion in the earlier case, might do so again. But it’s not as simple as someone saying, “Gee, I’d like to reschedule cannabis this morning.” And though the President appoints the officials in question and can fire them, the power under the law does not belong to the President.

Moreover, the law explicitly requires that any substance covered by the international drug conventions – which marijuana is – be controlled, regardless of any other factors. Thus the Executive Branch as a whole lacks the power to remove cannabis from the CSA entirely.

Since Jacob Sullum and his friends get their feelings terribly hurt when I point out that he’s talking through his hat, and since I purely hate hurting people’s feelings, I won’t mention him here. That will save him the effort of once again misrepresenting not only the law but what I said about the law, and about his misunderstanding of it.   But the next time he decides to accuse the President – who in real life was a law professor – of not having read the law, perhaps Sullum will consider … reading the law.

Footnote Eighteen members of Congress seem to share this misundestanding, which Americans for Safe Access – the lobby for the medical-marijuana industry – is doing its best to promote.

 

 

 

Comments

  1. SamChevre says

    How does the scheduling/prescription rule interact with vitaminsl? I know they can be prescribed, even if they are available over-the-counter, so it seems that there's some possibility that drugs that have recognized uses, but not necessarily full-scale research, can be prescribed.

    (If prescribed, medical plans will pay for them; most clinics will write prescriptions for pre-natal vitamins for women who are pregnant so that health insurance will pay for them.)

  2. Kenny says

    Your inclinations to defend the placement of cannabis in schedule I is purely academic, and therefore perplexing. (see Kleiman’s “essay”) Surely you don’t believe it belongs there, do you? Then why all the puffery? This isn’t about you Mark, this is about common sense as it pertains to a plant.

    The conversation is swiftly moving towards delisting, not rescheduling, anyways. What say you with regards to delisting cannabis, would you support? Why or why not?

  3. Mark Kleiman says

    I'm not defending anything. The scheduling regime is incoherent and ought to be scrapped. Cannabis ought to be legal, but kept expensive and not subject to aggressive marketing. But none of that is within the power of the President. My objection isn't to any particular policy position, but to sleazy, sloppy journalism.

  4. juris imprudent says

    …the power under the law does not belong to the President.

    According to the Constitution all executive power is vested in the President, who may then delegate it within the Executive branch. Yes, absolutely the President can direct his subordinates in accordance with the law. You have to be smoking something to not understand that.

    • Windy says

      Not only that but the law which created the CSA GAVE the power to the executive to alter or scrap it, so yes Obama (or any other president) could could reschedule marijuana/cannabis/hemp or even deschedule it completely and he does NOT need to ask Holder or any other member of his admin to do it, either, he can do it himself!

  5. markgibb67 says

    Oh bother. Why does Kleiman lower the level of discourse with childish taunts like "[they] get their feelings terribly hurt" when he talks about people who disagree with him? I have read Jacob Sullum's response, and it seems to me that the only one engaged in "sleazy, sloppy journalism" is Kleiman. He's splitting hairs rather than having a mature give-and-take about what Sullum is saying. Someone who is confident in himself admits when he is wrong.

    • Mark Kleiman says

      When I'm wrong, I admit it. When other people are wrong, I point it out.
      Some of them, like Sullum, react badly. That's life.
      Sullum accused the President of not having read a law Sullum clearly hasn't read. Congress assigned certain powers to the Executive Branch, and defined the rules about their use. Under those rules, as interpreted by the courts, cannabis can only be in Schedule I. If the administration were to reschedule it anyway, that would give no one access to it for medical use unless and until it becomes an FDA-approved drug, in which case it would be rescheduled anyway.
      The barriers to medical use are the lack of clinical-trial evidence, and the barrier to acquiring that evidence is the UMiss monopoly on research cannabis and the rule that research cannabis has to be "granted" rather than purchased.
      Sullum is so obsessed with solving the wrong problem – and with an opportunity to question the intelligence of a President he loathes – that he can't see the right problem.
      Yes, I know it seems otherwise to you. That's because you don't know the actual situation. And that's what charlatans like Sullum count on. Go read the law and the relevant court decisions, then come back.

      • markgibb67 says

        In what way did Sullum react badly? The only bad things I have seen in this exchange is you twice saying that Sullum and others get their feelings hurt due to your writings. The first time, you even taunted with this utterly immature scribbling: "Tom Angell’s feelings are hurt because I was mean to poor widdle Jacob Sullum." Are you proud of writing stuff like that? Is it "reacting badly" simply to disagree with you?

        You're talking about all processes and details that are required during the rescheduling. Sullum's assertion is that the President, through his Attorney General, that can start the process of rescheduling. That is what Sullum is calling for, and you have admitted that it is correct. He never intimated that it would be done trivially or overnight. Or, that it would be immediately legalized upon rescheduling. Rescheduling can help start the process of completely ending marijuana prohibition at the federal level. All of those intricate details about clinical trials and such are about FDA approval of medicines. To me, that is all beside the point, as in most cases, people couldn't care less about it being "medicine", they just want to smoke it for the fun of it.

        • markgibb67 says

          Above, I mentioned the "only" bad things I have see in this exchange. But I really should have mentioned this paragraph Kleiman wrote that started out his exchange with Sullum:

          "Jacob Sullum, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President, illustrates my point in his response to the latest CNN Obama interview."

          And it's Sullum that is "reacting badly"? This is how Kleiman thinks a discussion should start out? Preposterous.

          • Freeman says

            Yes, well, when one wants somebody to react badly, opening a critique with three ad hominem remarks in a single sentence is one way to attempt to provoke such a reaction. One should always be sure to include culturally divisive partisan insults. Afterwards, one can just assert that the other party reacted badly and fellow partisans will nod their heads in agreement while completely ignoring the distasteful nature of the provocation, whether they can cite any actual “bad reactions” to it or not.

            Sullum is wise to stick to the facts of his position and avoid responding in kind to such a clumsy attempt to “rope-a-dope” cultural opponents into “a style of advocacy that intensifies cultural antagonism and thus deepens public resistance to engaging sound empirical evidence”, because the fact is, sound empirical evidence does not support cannabis belonging in Schedule I.

  6. burnspbesq says

    It is interesting that none of you who are dumping on Mark have provided even the beginnings of a strategy for dealing with the United States' obligations under the Single Onvention. Are y'all ignorant of those obligations, or do you just not care?

    • Bruce Symington says

      Seeing as the US was the prime mover in the enactment of the 'single convention', which YOU did to advance YOUR now discredited approach of prohibition around the world, way back in the last millennium, it is YOUR responsibility to end it. Crying about a conflict between the single convention and efforts to end prohibition is disingenuous at best. (I know you don't know the meaning of that 'big word' I just used. It means your position is a lie.)

  7. Anonymous says

    Arguably, the AG and HHS Secretary could decide to change that legal standard; the courts, having deferred to administrative discretion in the earlier case, might do so again. But it’s not as simple as someone saying, “Gee, I’d like to reschedule cannabis this morning.” And though the President appoints the officials in question and can fire them, the power under the law does not belong to the President.

    Ask Archibald Cox and William Ruckleshaus about that, and get back to me.

    Seriously, in our system, the President has all the executive power. If Holder refuses to do it, he can fire Holder. If the DEA or HHS refuses, he can fire those cabinet heads too. And the PRESIDENT'S certification is judicially unrevieable.

    It really is that simple. In our system, unless Congress creates an independent agency like the Fed, there's no such thing as Executive Power not held by the President. Nixon proved that, if he proved nothing else.

  8. Douglas Haynes says

    As the cowards in the admin say who me? I cant do that! How many more lives are being ruined tonight by the smash and grab cops operating in this free country? Of course it is all academic to people in ivory towers.

  9. Richard P Steeb says

    I do not give a flying fig who gets it done, the admin, the AG or the POTUS:

    Cannabis shall be removed from CSA "Schedule I", and placed in "CSA Subchapter I, Part A, §802. Definitions, paragraph (6)", appended to the list "distilled spirits, wine, malt beverages, or tobacco", where it will STILL be the least-toxic in the category [by several orders of magnitude].

    &lt ;http://www.deadiversion.usdoj.gov/21cfr/21usc/802.htm>

    Anything short of THAT is UNACCEPTABLE.

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