"Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action"

The title of this post is the title of this essay authored by Robert Mikos.  The essay was written and posted to SSRN months before the November election, but it is arguably even more timely today.   Here is the piece's abstract:

Could the President legalize marijuana, without waiting for Congress to act?  The 2020 Presidential Election has shown that this question is far from hypothetical.  Seeking to capitalize on frustration with the slow pace of federal legislative reform, several erstwhile presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.  This Essay warns that such promises are both misguided and dangerous, because they ignore statutory and constitutional constraints on the President’s authority to effect legal change.  It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation.  To be clear, this Essay is not a defense of our current federal marijuana policy.  That policy is a mess, regardless of one’s views towards legalization.  But proponents of reform need to recognize that Congress made this mess, and only Congress is capable of cleaning it up.