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.
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.