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