Tuesday, January 21, 2014
This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.
The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.
Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.
I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.
Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers. In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on. In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today. Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.
As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.
Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law. There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.
It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.
In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.