Thursday, August 24, 2023
The title of this post is the title of this notable new paper authored by Scott Bloomberg, Alexandra Harriman and Shane Pennington. Here is its abstract:
In October 2022, President Biden requested that the Secretary of Health and Human Services and the Attorney General initiate a procedure to review how marijuana is scheduled under the federal Controlled Substances Act (“CSA”). The announcement was historic. After more than fifty years of federal prohibition, decades of advocacy and litigation from reform groups, and dozens of stalled efforts in Congress, a President finally decided to wield the Executive Power with an eye towards rescheduling or descheduling marijuana. But just how far does that power go?
That question has been severely underexplored in legal scholarship. Indeed, our Article is the first to fully navigate the thicket of statutory and administrative law that dictates the scope of the President’s power to unilaterally reschedule or deschedule marijuana. In doing so, we conclude that the CSA’s administrative drug-scheduling procedure is much broader than prior scholarship has led on. We identify several avenues for the President to move marijuana to a less restrictive schedule and highlight a narrower pathway to deschedule marijuana entirely.
These findings are of immediate relevance. They can help guide the Executive Branch as it reconsiders how marijuana is scheduled and will prove useful to courts when the Biden Administration’s eventual decision is, inevitably, subjected to judicial review.