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There have been a lot of advocates for reform insisting that President Obama and the Department of Justice take action on marijuana reform, and back up his recent statments that "marijuana is no more dangerous than alcohol". The DEA does have the power to move Marijuana out of the list of Schedule I Federally Controlled Substances.

Congressman Earl Blumenauer has said it's very clear that administrative rescheduling is allowed under the law.

Yet, Mark Kleiman, a highly respected expert in drug policy insists that simply Rescheduling is largely meaningless, and the ability to end federal marijuana prohibition requires an act of Congress.

If the DEA Administrator decided that the drug had “accepted medical use,” that would move it to Schedule II, making cannabis legally available by prescription. Selling it without a prescription would remain the same crime it is today. (Recall that cocaine and methamphetamine are Schedule II drugs.)

But prescriptions can only be written for FDA-approved drugs. And the FDA can’t approve “marijuana,” because “marijuana” isn’t something that can be put through clinical trials. The New Drug Application would have to be for a specific cannabis preparation, to be given in a specific dosage regimen via a specific route of administration for the treatment of a specific condition. That “new drug” could be a single molecule a combination, an herbal preparation, or an extract. In any case, it would have to have a known and reproducible chemical composition and be produced using “Good Manufacturing Practice.” Producing cannabis without FDA approval would still be the illegal manufacture of a Schedule II controlled substance.

When the president told Jake Tapper of CNN that rescheduling is a "job for Congress" and that there are "laws under-girding those determinations", that's probably what the President meant.

The question about Rescheduling clearly implies that doing so would end Federal prohibition, and remove any conflict with Federal law that still exists in the 20 states that have legalized medical or recreational marijuana.

You don't have to be an Obot to believe that the President was answering the question as intended, as not simply whether he had a technical power to reclassify that would have no significant or meaningful practical result. As Kleiman said on twitter:

Again, Kleiman insists that what advocates almost certainly are asking for is an explicit exemption from the Federal drug schedules, which requires rewriting the law, not just reclassification:

Alcohol and tobacco, both highly abusable drugs with no accepted medical use, would be Schedule I, but they are explicitly exempted in the text of the law:

The term [controlled substance] does not include distilled spirits, wine, malt beverages, or tobacco.

The power to reschedule is not completely meaningless, however. Rescheduling to Schedule III, would have very important tax benefits to small businesses that sell marijuana. Under current law, they are not able to deduct legitimate business expenses that any other small business can, resulting in effective business tax rates that are double or triple those of other businesses.

Yet it seems clear that President Obama cannot simply legalize pot on his own authority.

The executive branch can and should reclassify marijuana. It is absurd that marijuana remains classified with substances that have "no accepted medical use, and a "high potential for abuse".

But the unfortunate fact is that to fix Federal marijuana laws will require action by Congress. And that may not be easy to get done, given how ineffective Congress has been at doing practically anything.

Originally posted to davematson on Thu Feb 06, 2014 at 11:25 AM PST.

Also republished by DKos Cannabis Law and Drug War Reform.

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Comment Preferences

  •  He COULD just legalize it. (3+ / 0-)
    Recommended by:
    Mr Robert, atana, wilderness voice

    But he's never going to do that.

    We'll have to legalize state by state and down the road we'll muse about the lives Obama could have spared from needless fuckers except politics.

    Always better to fuck the people than to do something that upsets the political apple cart.

    (like controlling spying, or reigning in the banks, or protecting social security, or anything else that MIGHT benefit the commoner over the millionaire.)

    You'll just have to be content with buying legal guns.

    Legal means "good".
    [41984 | Feb 4, 2005]

    by xxdr zombiexx on Thu Feb 06, 2014 at 11:29:39 AM PST

    •  I'm pretty sure he can't (2+ / 0-)
      Recommended by:
      jan4insight, RMForbes

      at least, if Kleiman is right. And I haven't seen a serious criticism of his analysis on the merits.

      The Controlled substances act is fair explicit. Alcohol and tobacco are named exceptions. Marijuana is not.

      But we absolutely have to do something. It is ridiculous for state and Federal law to be in direct conflict.

  •  Thanks for bringing a dose of reality (4+ / 0-)

    into this discussion. Even some people won't hear of it.

    I don't love writing, but I love having written ~ Dorothy Parker // Visit my Handmade Gallery on Zibbet

    by jan4insight on Thu Feb 06, 2014 at 11:35:22 AM PST

    •  thanks. (2+ / 0-)
      Recommended by:
      isabelle hayes, jan4insight

      Again, I don't want to be an Obot on this issue. Obama has not been at all good on this issue.

      But he and the justice department are at least starting to finally make the right kind of noises, and make make some decent improvements around the margins.

      But on the big stuff, it looks like their hands are tied.

    •  Ah yes, good ol' "reality". (3+ / 0-)
      Recommended by:
      davematson, atana, wilderness voice

      Of course, the reality is that Obama re-classifying marijuana from a schedule 1 substance (with "no medical uses", ha) would be, by itself, a really big deal. This is something he could do if he chose. The reality is that he chooses not to.

      The current classification of marijuana is a gross deception on the part of the government and Obama does have the power to single-handedly change that. It would not be a "meaningless" gesture by any stretch. In fact, it would be a major tipping point in terms of the government's attitude towards handling this issue.

      He won't do it, though.

      •  Actually it's not as simple as you assume (2+ / 0-)
        Recommended by:
        spacecadet1, wilderness voice

        Yes, the President can order the AG to start the rescheduling process but as current court cases have affirmed the DEA actually controls how the process progresses.

        The DEA is the problem here and they have been for decades. They have been standing in the way of studying the medicinal affects of the more than 80 cannabinoid drugs found in cannabis resins. The only legal place producing cannabis plants for these studies at the University of Mississippi has been strictly controlled by the DEA making it almost impossible to study cannabinoids.  

        Really don't mind if you sit this one out. My words but a whisper -- your deafness a SHOUT. I may make you feel but I can't make you think..Jethro Tull

        by RMForbes on Thu Feb 06, 2014 at 12:18:37 PM PST

        [ Parent ]

        •  Okay, fair enough, but the point stands. (1+ / 0-)
          Recommended by:
          davematson
          the President can order the AG to start the rescheduling process
          •  That would just slow down the process because (1+ / 0-)
            Recommended by:
            davematson

            the DEA will just drag their feet until the next administration takes office. By not acting, the ball falls in the Congress' court. Did you see this from earlier today? I hope BHO stays out of it until enough States and Congress critters have already committed themselves to re-legalization like he did with marriage equality.

            Really don't mind if you sit this one out. My words but a whisper -- your deafness a SHOUT. I may make you feel but I can't make you think..Jethro Tull

            by RMForbes on Thu Feb 06, 2014 at 01:37:07 PM PST

            [ Parent ]

            •  I disagree (4+ / 0-)
              By not acting, the ball falls in the Congress' court.
              Oh good, Congress! We can always count on them to get things done! Just kidding, Congress won't do shit on legalization until they're sure it's an absolute sure political winner, and we're not there yet.

              At risk of drawing an inappropriate parallel, I think marijuana legalization is sort of at the same point gay marriage was seven or eight years ago. The cultural attitudes are turning significantly and some individual states are bucking the federal rules. If Obama called for the DEA to re-asses marijuana, whether or not the DEA actually cooperated with him, it would add to the momentum of legalization big-time.

            •  The DEA is under the DOJ (3+ / 0-)
              Recommended by:
              atana, lysias, wilderness voice

              run by Holder, who works for Obama.

              If Obama doesn't want to shake up the entrenched bureaucracy there, that is very unfortunate.  But he could if he wanted to spend time on that issue. They are part of the executive branch.

              Again, rescheduling might not practically change a lot, but it would send a huge signal that it's not business as usual in the drug war.

              •  Yep, just like the IRS is run by the Treasury (0+ / 0-)

                Department and the Treasury Secretary works for Obama too. That, however, does not mean that the President can micromanage these federal agencies. In fact, the President could not shake up the entrenched bureaucracy like you suggest unless these bureaucrats were not fulfilling their oath of office and enforcing the federal laws that they operate under. It would create a huge legal problem for this Administration just like the fiasco that led to the resignation of AG Alberto Gonzalez. I think this Administration continue down their current path of setting liberal guidelines and cutting the DEA's budget every year.

                Really don't mind if you sit this one out. My words but a whisper -- your deafness a SHOUT. I may make you feel but I can't make you think..Jethro Tull

                by RMForbes on Thu Feb 06, 2014 at 03:26:22 PM PST

                [ Parent ]

      •  Agreed (3+ / 0-)

        Even if it had only minor or symbolic value, rescheduling would be a significant signal about the changing attitude of the government towards marijuana prosecution and criminalization.

  •  what he can do, direct law enforcement priorities (8+ / 0-)

    away from heavy enforcement of the marijuana laws that conflict with state law.

    By prioritizing them somewhere behind prosecuting the Banksters, it should make the medical/recreational industry very safe......

    Vaya con Dios Don Alejo
    I want to die a slave to principles. Not to men.
    Emiliano Zapata

    by buddabelly on Thu Feb 06, 2014 at 11:47:33 AM PST

  •  The US signed a UN treaty on drugs in 1961... (0+ / 0-)

    it classifies "cannabis" as a narcotic and would not allow the US Government to legalize it at all.

    http://www.unodc.org/...

    The best we could hope for is that the feds ignore the law or make penalties so minor as to be  nil.

    Bring me the head of Geraldo Rivera.

    by old mark on Thu Feb 06, 2014 at 01:08:33 PM PST

  •  Would number of pot users go down? Just like (0+ / 0-)

    tobacco, every effort should be made to curb usage. Sometimes I get impression people advocating for legalizing weed are in favor of more people actually using it.

    “Well, when the president does it, that means it is not illegal.” Richard Nixon, 1977.

    by Kvetchnrelease on Thu Feb 06, 2014 at 01:19:20 PM PST

    •  Absolutely in favor (2+ / 0-)
      Recommended by:
      Paul Ferguson, Kvetchnrelease

      of more people using it, especially the ones supposedly making laws in Washington.

      Less alcohol and more pot would help this country a whole bunch. And don't get me started on LSD. It should be required for all government officials to have tripped at least a few times.

      "If you lose your sense of humor, it's just not funny anymore" Wavy Gravy

      by offgrid on Thu Feb 06, 2014 at 01:38:10 PM PST

      [ Parent ]

    •  Absolutely in favor. (3+ / 0-)
      Recommended by:
      davematson, Kvetchnrelease, JeffW

      The data about legal recreational marijuana hasn't had time to accumulate yet, BUT states with legal medical marijuana have had at least two important changes.  Their rate of fatal car crashes goes down, and their suicide rate goes down.  Medical marijuana saves lives and its use should be promoted.  

      "My country, right or wrong; if right, to be kept right; and if wrong, to be set right." -- Sen Carl Schurz 1872

      by Calamity Jean on Fri Feb 07, 2014 at 02:43:12 AM PST

      [ Parent ]

      •  I think you've hit upon how we can win back House: (1+ / 0-)
        Recommended by:
        davematson

        work free drug place war on sobriety. I realize your comments about more people using drugs are snark, but still there needs to be the corollary about treatment facilities when legalizing pot.

        “Well, when the president does it, that means it is not illegal.” Richard Nixon, 1977.

        by Kvetchnrelease on Fri Feb 07, 2014 at 06:50:11 AM PST

        [ Parent ]

        •  Excuse me? That was most emphatically (1+ / 0-)
          Recommended by:
          JeffW

          NOT snark!  I meant every word.  

          And it is true, suicide and traffic fatality rates do go down.  

          "My country, right or wrong; if right, to be kept right; and if wrong, to be set right." -- Sen Carl Schurz 1872

          by Calamity Jean on Sun Feb 09, 2014 at 04:25:37 PM PST

          [ Parent ]

  •  All he said was "no MORE dangerous than alcohol" (1+ / 0-)
    Recommended by:
    Kvetchnrelease

    That's not exactly the most-up-to-date epidemiological conclusion ... if the actual health consequences of both substances are considered.  And it's certainly not a promise to take up the cudgels on behalf of Legalization.  

    But hey ... the President Has. To. Chose. His. Battles.

    And THIS isn't one that offers him a lot of upside ... personally or politically.

    Oh ... y'all thought he was on YOUR side, because he updated his Marriage Equality position more or less when everyone else in the Democratic Party had done so.

    Well, that's what politicians do ... help you feel that they have your best interests at heart -- each and every one of you.

  •  What about prosecutorial discretion? (1+ / 0-)
    Recommended by:
    davematson

    Even if he doesn't have the power to reclassify marijuana by himself, surely he can have his Department of Justice not prosecute any marijuana "crimes".

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Feb 06, 2014 at 02:36:48 PM PST

  •  What He Could Really Do (1+ / 0-)
    Recommended by:
    davematson

    What he could really do that would effectively legalize it is to give a blanket pardon to all non-violent drug offenders in U.S. prisons.

    This would remove an enormous number of people from jails. It would also erase their drug conviction records, allowing many if not most of them to get jobs. It would enormously reduce costs.

    And, as a practical matter, it would discourage anyone from trying to convict more people for marijuana use or dealing. If the entire result of pursuing them is that the person is turned out of jail, then what's the point? Police would turn their attention elsewhere.

    And, Congress would probably be forced to bring at least federal marijuana laws back to reality.

    That's what he could do, on his own, with no change in the law, completely under his own, indisputable authority. That's what he should do. Let's see what he does do.

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