Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, August 18, 2016

"Can the Next U.S. President Reschedule Marijuana?"

USP1310-CE-T2The question in the title of this post is the headline of this timely Inc. article, which essentially answers the question via its lengthy subheadline: "The DEA denied the most recent petition to reschedule marijuana, citing a lack of scientific evidence to prove its medical benefits. But here's how Obama, or the next U.S. president, can reschedule the drug." Here is more from the article:

The U.S. Drug Enforcement Administration has denied the most recent petitions to reschedule marijuana. But Hillary Clinton says that if she becomes president, she will move marijuana to the same category as oxycodone and other opioid painkillers available by a doctor's prescription. Clinton, through her senior policy adviser Maya Harris, told The Cannabist that she will reschedule marijuana from its position as a Schedule I substance to Schedule II under the Controlled Substances Act.

"Marijuana is already being used for medical purposes in states across the country, and it has the potential for even further medical use," said Harris in a statement. "As Hillary Clinton has said throughout this campaign, we should make it easier to study marijuana so that we can better understand its potential benefits, as well as its side effects."

Presidential candidates make all sorts of promises, but could a president actually reschedule marijuana unilaterally? The answer is yes, but not with a stroke of a pen.

John Hudak, senior fellow at the Brookings Institute, explains that there are certain procedures in the Controlled Substances Act that must be followed. "A president cannot reschedule a substance by executive order, that is against the Controlled Substance Act," says Hudak. "It is against the letter of the law." Hudak says there is a suggestion in the CSA that the attorney general might be able to reschedule a substance unilaterally through an order, but that would fly against the long-established administrative procedure and might bump up serious legal challenges.

Mark Kleiman, a professor of public policy and the director of the Crime Reduction & Justice Initiative at New York University's Marron Institute, explains how Hillary, if she wins, can follow through on her promise. "She is not making it up. She can reschedule marijuana. It's not that complicated," says Kleiman. The power to reschedule a substance, Kleiman says, has been delegated to the attorney general (who in turn delegates to the DEA) and to the Department of Health and Human Services (which in turn delegates its clinical testing to the FDA). "But, yes," he adds. "Those people work for the president, and, yes, the president can tell them to reschedule marijuana."

The logistical process of rescheduling, Kleiman says, would involve redefining what "current accepted medical use" means in the Controlled Substances Act. Again, it's up to the agencies (attorney general with the DEA; HHS with the FDA) to define what that term means. "All the DEA has to do is explain how they have overruled themselves and will be going back to what DEA administrative law judge Francis Young said in 1988, that 'medical use' means a bunch of physicians believe something is useful," says Kleiman. "The DEA could say how they take notice that a lot of physicians are recommending marijuana and how 25 state legislatures agree with the doctors. We are now saying this has accepted medical use, but it still has high abuse potential; we're putting it in Schedule II."

As the CSA gave authority to the attorney general, who in turn delegated to the DEA, those agencies are allowed to interpret statutes in varying degrees, unless the decisions are "obviously unreasonable, arbitrary, or capricious," says Kleiman. That means if Clinton wanted to reschedule marijuana if she makes it to the White House, she could....

It should be noted, however, that rescheduling will not make the state-sanctioned recreational markets in Alaska, Colorado, Oregon, Washington state, and Washington, D.C. legal, nor will it make the medical marijuana markets in 25 states legal. If marijuana becomes a Schedule II drug, it will still be illegal federally to use, produce, or manufacture. If marijuana were down-scheduled, it would still be federally illegal to produce and sell because Schedule II drugs cannot be given out without a prescription. A prescription can only be written for an FDA-approved drug, and there are no FDA-approved drugs made with the whole cannabis plant. (Marinol, which is FDA approved, is made with synthetic THC.)

As for the industry's hope that the whole plant will be FDA-approved, Hudak says not a chance. Hudak says if cannabis-based medicines are approved in the future, the medicines will not be botanical. Like other FDA-approved drugs, specific chemicals will be extracted and isolated at the molecular level in a method that is replicable and consistent. "You might see cannabinoid compounds rescheduled and put on the market, but whole flower smoked marijuana will never be approved," says Hudak.

http://lawprofessors.typepad.com/marijuana_law/2016/08/can-the-next-us-president-reschedule-marijuana.html

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