Tuesday, May 5, 2020
The title of this post is the title of this new article authored by Paul J. Larkin, Jr. available via SSRN. Here is its abstract:
The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marijuana by placing it in a category (Schedule I) reserved for drugs that are unhelpful and dangerous. In so doing, the CSA approached this problem from the wrong direction. People use drugs for medical or recreational purposes, and each one requires a separate legal scheme.
Medical Marijuana Use: For more than 50 years, Congress has entrusted to the Commissioner of Food and Drugs the decision whether a particular drug is “safe” and “effective” and therefore can be sold throughout the nation. The reason is that those decisions require the scientific expertise of professionals in the fields of medicine, biochemistry, and the like, not the legal knowledge of Justice Department lawyers or the moral sensibilities of the electorate. Congress should leave to the judgment of the FDA Commissioner the decision how federal law should regulate medical-use marijuana.
Recreational Marijuana Use: American society permits alcohol and tobacco to be sold under regulation. For alcohol, the Twenty-First Amendment empowers states to decide whether and how to sell liquor without much room for supplementary federal regulation. For tobacco, the Family Smoking Prevention and Tobacco Control Act of 2009 authorizes the FDA Commissioner to regulate the distribution of tobacco products. Congress should consider whether to follow the same approach here. There are various factors relevant to that decision. For example, long-term marijuana use can lead some users to become dependent on, or addicted to, the drug, or to suffer serious mental disorders, such as psychosis. Legalizing recreational marijuana use also will increase the number of roadway accidents attributable to cannabis intoxication. Whether the benefits of recreational marijuana use outweigh those harms is the question that Congress should answer.