Can the President reschedule or deschedule marijuana? That is the question I explore in my latest article, tentatively titled Ending Federal Marijuana Prohibition Through Administrative Action, which I have co-authored with Alexandra Harriman and Shane Pennington.
The answer to that question turns out to be exceedingly complex. When Congress enacted the federal Controlled Substances Act of 1970 (“CSA”) it classified drugs into five different schedules and placed marijuana in Schedule I—the most serious category of drugs. At the same time, Congress understood that time may prove its initial classifications to be unsound. It accordingly included a procedure in the statute for adding drugs, transferring drugs between schedules (“rescheduling”), and removing drugs from the CSA’s ambit entirely (“descheduling”). That procedure is labyrinthine. It involves a back-and-forth between the FDA and the DEA; consideration of (at least) 8 different factors; interpretation of U.S. treaty obligations; and a hearing on the record in front of an administrative law judge.
We argue that this procedure gives the President—acting through the FDA and DEA—power to reschedule marijuana to a less restrictive schedule (as the Biden Administration is currently trying to do). Those administrative agencies can conclude that marijuana has an accepted medical use and a relatively low potential for abuse—characteristics that align with placement on Schedule III, IV, or V. We also argue that the CSA’s scheduling procedure may allow the President to remove marijuana from the CSA’s ambit entirely. This proposition, we acknowledge, is much more uncertain. It would hinge on a reinterpretation of some of the CSA’s key terms, a generous construction of a CSA provision that deals with treaty obligations, and a modicum of deference to the administrative agencies on judicial review.
The Article will be published in the Oklahoma Law Review in early 2024. A working draft is available on my SSRN page.