How the President Can End Pot Prohibition Without Congress

After President Obama admitted last year that he doesn’t think marijuana is more dangerous than alcohol, he was pressed to reconcile this view with the federal war on weed. Why won’t he once and for all declassify marijuana as a controlled substance?

The president’s response, and that of his attorney general, is that it’s a job for Congress. But that’s not true, says Brookings Institution Senior Fellow John Hudak. According to a report authored by Hudak and Grace Wallack, the federal Controlled Substances Act clearly details a process by which the administration can take marijuana out of the drug schedules or, at the least, lower its schedule so that medical research can proceed.

To the feds, marijuana is a Schedule 1 substance, considered the most dangerous of the five classes of drugs. Schedule 1 drugs are defined as having a “high potential for abuse,” and are the only controlled substances the feds claim have “no currently accepted medical use.” That's why marijuana is treated the same as heroin, and why it's even more restricted than meth.

Since California became the first state to legalize in 1996, many more states are waking up to the benefits of ending pot prohibition. Twenty-three states and the nation’s capital have already legalized medical marijuana, while Pennsylvania enacted a law to do so just last week and at least a dozen more states are considering following suit this year. Four states allow recreational use, and over 80 percent now permit some form of medical cannabis extract. These reforms mean that patients with diseases such as cancer and Alzheimer’s can get life-changing treatments, violent drug cartels are being starved, and state and local governments have a new revenue source to make good on their unfunded liabilities.

So why does federal law still matter if states are legalizing left and right? Because it means federal agencies still can—and have—ignored state sovereignty by raiding legal facilities on a whim. They deny cannabis businesses access to loans and bank accounts, and, perhaps most perniciously, federal regulations prevent most scientists from studying marijuana’s medical benefits.

In fact, the feds say marijuana has to remain in Schedule 1 because there aren’t FDA-style clinical studies supporting its medical value. Yet such clinical studies are exactly what the feds prohibit by keeping marijuana in Schedule 1.

Even with this catch-22, there’s already abundant evidence of marijuana’s medical value from other types of studies—just ask the Surgeon General. Or the Department of Health and Human Services, which owns a patent on the chemical components of marijuana. Or the FDA itself, which has approved and allowed the rescheduling of cannabis-based medicine. Or the National Institute on Drug Abuse, which has suggested we need to reconsider marijuana as a medicine and allow more research.

The most recent petition to reschedule marijuana was filed with the attorney general in 2011, and—half a decade later—is still pending. Only four such petitions have been considered since 1972, and one took over 20 years to adjudicate. The DEA claims it will complete its review of the current petition by June, but this history shouldn’t encourage marijuana reformers to hold their breath.

The clock is ticking on the Obama administration. Absent further congressional action, will the president finally find the political will to end federal pot prohibition? Or will he leave it to a future Congress or POTUS?

5:48 minutes.

Written and Produced by Justin Monticello. Camera by Joshua Swain. Additional footage by Mitch Martinez. Music by Cab Calloway & Jingle Punks.

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