At present, eleven states (plus the District of Columbia) have moved to legalize cannabis for adults over the age of 21. The most recent state, Illinois, was the first state to legalize cannabis by way of legislation as opposed to the ballot box. In total, 33 states, including Utah, have legalized medical cannabis.
Several additional states are aiming to legalize cannabis in some form this year. While all of this is encouraging, there remains one big issue, which is that cannabis is still federally illegal.
So, what will it take for the federal government to legalize cannabis?
What has transpired in America in terms of cannabis legalization since California passed Prop 215 in 1996 is quite remarkable and resembles one of the more powerful assertions of federalism in our country’s history. However, for all that the states have done to liberate the cannabis plant, the federal government has done very little, if anything, to help.
Instead, since the Marihuana Tax Act was passed in 1937, the federal government has largely been the enemy of the cannabis community. Scores of people have been incarcerated in the name of federal cannabis policy. Similarly, untold numbers of persons have been forced to break the law in order to obtain and consume cannabis as a medicine.
Despite declaring a “War on Drugs” in the early 1970s, the federal government’s efforts on that front are a failure by any measure. It is beyond time that the federal government rectify the harms that it has caused through its heavy-handed drug policies. The issue that arises is whether it will be Congress or the sitting President that will push legalization over the finish line.
If Congress is to be the one to legalize cannabis federally, it will not be easy given its current makeup. It is no secret that Senate Majority Leader Mitch McConnell is not a fan of THC-rich cannabis, even though he is an ardent support of its cousin the hemp plant.
Case in point, the SAFE Banking Act that passed through the House of Representatives, has been sitting dormant in the U.S. Senate since September of last year. It has now been reintroduced as part of the HEROES Act that was passed by the House on May 15th.
It will now take a vote by the Senate to make the SAFE Banking Act a reality. In the event that Congress fails to pass the SAFE Banking Act or other meaningful cannabis legalization legislation, there is still yet hope for federal cannabis legalization. That hope comes from the authority of the executive branch.
As part of its administrative powers, the executive branch can exercise its authority to reschedule cannabis by moving it to a less restrictive tier under the Controlled Substances Act. Cannabis is currently a Schedule I substance under the CSA, meaning it has a strong potential for abuse and no currently accepted medical use.
Other Schedule I substances include heroin and LSD. Being classified as a Schedule I substance has limited the scientific and medical research and clinical trials involving cannabis (even though two-thirds of the states have approved the drug for medical use).
Due to its Schedule I classification, researchers must obtain federal permission to research and study cannabis, while at the same time adhering to restrictive protocols as part of their work.
In addition to the challenges faced by researchers, state-legal cannabis businesses are not allowed to deduct ordinary business expenses from their federal taxes. Strict regulations from the U.S. Treasury Department have meant that banks largely avoid the sector, which has left many cannabis businesses in the industry dependent on cash transactions and at risk for crime. Similar issues exist in other arenas (i.e., insurance, funding, payment processing).
The key player in terms of rescheduling cannabis or any other controlled substance is the attorney general.
The president has the authority to direct the AG to review cannabis’ status as a Schedule I substance. Additionally, the AG can act independently to initiate such a scheduling review.
The Secretary of Health and Human Services or other outside groups (including medical associations, state/local entities, or individual citizens) may also petition the AG to initiate a review.
As part of its review, the AG is required to consult the Food and Drug Administration on the medical and scientific findings regarding the substance, public-health risks, and the potential for abuse. Per statute, the HHS secretary’s scientific and medical recommendations (via the FDA) are binding on the AG.
The Drug Enforcement Administration also provides recommendations as part of the review process. Following the AG’s review of the FDA’s and DEA’s responses, the AG is presented with several options: 1) keep cannabis in Schedule I; 2) reschedule cannabis to another schedule where less restrictive controls; or 3) de-scheduling cannabis entirely and removing it from the CSA. The last of these options is effectively legalization if not by name.
Although there have been a number of attempts to reschedule cannabis under the CSA, neither the FDA nor the DEA has recommended rescheduling. This is true even though synthetic drugs containing THC have been categorized under Schedules II-V.
Although the unwillingness of the FDA and the DEA to recommend rescheduling cannabis, this could change in the coming years (especially as more and more Americans favor cannabis legalization). Even still, it is likely that the FDA may be a more willing partner for cannabis rescheduling/de-scheduling than the DEA. After all, at least part of the DEA’s job is to eradicate illegal drugs, right?
Despite the challenges presented by the FDA and DEA, a president committed to cannabis rescheduling and/or de-scheduling, could install leadership within the FDA and DEA that would be committed to the rescheduling or de-scheduling of cannabis, regardless of the wishes of those drug warriors working for the two agencies that are so deeply entrenched in their opposition to cannabis.
In addition to efforts to reschedule/de-schedule cannabis, the president may also use his or her powers to grant clemency to pardon or commute the sentences of cannabis offenders.
In fact, both President Donald Trump and former President Barack Obama have issued pardons or otherwise commuted the sentences of individuals whose offenses involved cannabis. Akin to the actions of states and municipalities around the country, the president could issue a blanket order pardoning/commuting the sentences of all federal cannabis prisoners. Such efforts would go a long way to repairing the harms that have been caused by the failed war on drugs.
While an act of Congress appears to be the most efficient and sustainable way to reschedule or outright legalize cannabis, whoever is president is armed with the necessary administrative tools and the growing backing of the public he or she needs to eliminate the current legal issues facing the cannabis community.
Given that Congress, as an institution, is similar to the DEA, in that it remains tethered to outdated ways of thinking, it may be the president that has to lead the charge on cannabis reform. By pursuing rescheduling/de-scheduling, pardoning/commuting the sentences of cannabis offenders, and prioritizing science and research over the lingering fears of reefer madness, the next president (whoever that may be) can forge a new path for cannabis in America.
