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Could the President Legalize Marijuana Through Executive Action?

Posted by on Thursday, March 19, 2020 in News, Updates.

The title of this post is inspired by Senator Bernie Sanders’s campaign promise “to legalize marijuana in the first 100 days [of his Administration] with executive action.” See here. Other Democratic Presidential hopefuls made similar promises, but since Sanders is the last such candidate standing (former Vice President Joe Biden has made no similar promise), I will focus on Sanders’s proposal.

I addressed the President’s authority to legalize marijuana in my keynote address at the University of Cincinnati, on March 6, 2020. In this post, I’ll briefly summarize two points I made in that address. Both points explain why the President cannot legalize marijuana for recreational purposes via executive action. To be sure, the President has a little more leeway to legalize medical marijuana without Congress, but for now, I’ll focus on why legalizing recreational marijuana would require new congressional legislation.

It appears Senator Sanders envisions using the Attorney General’s scheduling authority under the Controlled Substances Act (CSA) to fulfil his promise.

The book explains the CSA’s scheduling scheme in more detail (see pages 196-202, 212-213 n.2, 214-222, 272-277). But in a nutshell, the CSA requires that all drugs of abuse be placed on one of five Schedules (I-V). To a large extent, scheduling determines how a drug will be regulated by the federal government. Drugs on Schedule I, like marijuana and LSD, are banned for any use except in federally approved research projects. Drugs on Schedules II-V are “legal”, but only in a limited sense, namely, for medical – but not recreational – use. In other words, with just two notable exceptions I’ll discuss below — there is no drug of abuse that is now legal to use recreationally under federal law. Even when a drug is legal for medical purposes (i.e., it’s on Schedules II-V), the possession, manufacture, and distribution of it are still subject to a variety of potentially onerous controls. For example, cocaine is on Schedule II, which technically makes it legal for a limited range of medical uses, but you won’t find the drug on the shelves of Walgreens or even behind the counter at any neighborhood pharmacy.

Congress made the original Scheduling decisions when it passed the CSA in 1970. At the time, it placed marijuana on Schedule I – a determination that reflected Congress’s view that marijuana lacked any redeeming medical uses and had a high potential for abuse. However, Congress also authorized the Attorney General – working in conjunction with the Secretary of Health and Human Services (HHS) – to reschedule or even de-schedule drugs. That authority is found in 21 U.S.C. Section 811.

It appears that Senator Sanders believes he could simply order his Attorney General to de-schedule marijuana. See, e.g., the Sander’s Campaign Website (claiming that a President Sanders would “take executive action to legalize marijuana by removing it from the Controlled Substance Act”).

De-scheduling would indeed fulfill Sanders’s campaign promise – i.e., it would formally legalize marijuana under federal law. Not only would it lift the federal criminal prohibition on possession, manufacture, and distribution of marijuana, but de-scheduling would also remove all of the other legal restrictions and sanctions that now flow from marijuana’s status as a Schedule I controlled substance. For example, state licensed marijuana suppliers would no longer be subject to Section 280E of the federal tax code, the provision that now bars them from deducting their operating expenses when calculating their federal tax liabilities. That’s because Section 280E applies only to illicit drug dealers (or more precisely, those individuals who business “consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State”). See 26 U.S.C. Section 280E. (The book discusses the tax issues confronting marijuana suppliers on pages 396-400.)

The problem is, the President CANNOT DESCHEDULE marijuana. I say this for several reasons, but let me highlight two here. Both concern express limitations on the AG’s scheduling authority imposed by the CSA.

1. The CSA requires the AG to comply with international treaties when making all scheduling decisions.

This particular limitation on the AG’s scheduling authority is found in 21 U.S.C. Section 811(d):

“If control is required by United States obligations under international treaties, . . . the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations. . .”

Furthermore, the treaties referenced by Section 811(d), including the Single Convention on Narcotic Drugs, require member states to ban the recreational use of marijuana. Consider this statement from the International Narcotics Control Board, made in 2016 in anticipation of Canada’s legalization of recreational marijuana:

“Legalization of the use of cannabis for non-medical purposes is inconsistent with . . . [International] Conventions because the Conventions oblige States parties to limit the use of narcotic drugs exclusively to medical and scientific purposes. . .”

Thus, so long as treaties require member states to ban recreational marijuana, the President (and the AG) lack the power to de-schedule the drug. Indeed, international conventions may bar the AG from moving marijuana below Schedule II. Decades ago, a prominent federal court (the D.C. Circuit) agreed with the AG’s contention that the international conventions referenced by the CSA require the U.S. to keep marijuana on a very restrictive schedule (either Schedule I or II). See book pages 274-275. And as suggested above, moving marijuana to Schedule II – the maximum liberalization allowed by treaties — would represent a very limited form of legalization, not even close to what Senator Sanders is promising.

I recognize that there would likely be no direct repercussions to the United States under international law if the United States were to flout its international drug control obligations. In other words, as a matter of international law, the drug control treaties probably lack an effective enforcement mechanism against recalcitrant member states. But there would be dire consequences under domestic law if the President ignored those treaty obligations. Through Section 811(d), Congress made our international commitments part of domestic law; namely, it express incorporated international drug law into the CSA’s scheduling regime. So even if a President Sanders could ignore international law with impunity on the international stage, he could not ignore domestic law (Section 811(d)) with impunity. There are consequences when the President ignores a congressional constrain on his / her authority. Even if you favor what Sanders is proposing, you can easily how dangerous it might be if another Executive (say, President Trump) simply ignored another congressional statute that you like (say, the Johnson Amendment or a congressional ban foreign intervention in U.S. elections).

In any event, even if the President found some way around our treaty obligations and Section 811(d), there’s a second obstacle to legalizing marijuana for recreational use through the AG’s scheduling power:

2. The CSA’s own scheduling criteria do not permit the AG to legalize drugs of abuse for recreational use.

The CSA views psychoactive substances through an exclusively (some would say myopically) medical prism. That much is clear from the statute’s scheduling criteria – think of these as the factors that the AG is supposed to consider when making scheduling decisions. On the benefits side of the scheduling ledger, the statute considers only a drug’s medical utility – basically whether the drug is effective at treating a medical condition or its symptoms. By contrast, the fact that a drug is “fun” to use does not justify relaxing controls on it.

Indeed, if anything, the fact that a drug has recreational appeal suggests it should be subject to tighter controls — in other words, recreational appeal is a harm, rather than a benefit, for purposes of scheduling. That’s because recreational appeal increases the temptation for people to abuse the drug, which the statute defines in purely medical terms as any non-medical use of a drug. To simplify: if a drug is used just for fun, it is abused; and if a drug is abused, it must be scheduled.

I often show students this glowing assessment of marijuana’s recreational potential, written (amazingly!) by the Department of Health and Human Services in its last official response to a petition to reschedule marijuana in 2016. In its response, the agency wrote that marijuana use is “pleasurable to many humans”, causing “Increased merriment . . . and even exhilaration . . . Relaxation, increased sociability, . . . Enhanced touch, . . . Heightened imagination . . . increased creativity.” See book pages 212-213 n.2. Why would the agency write this – or perhaps more precisely, why would it keep marijuana on Schedule I after writing this? Well, as just explained, that’s because under the CSA, these “pleasurable” effects of marijuana are considered “harms” rather than “benefits” – they do not involve treating any medical condition and thus, by definition, demonstrate that marijuana is abused and must be scheduled.

Even if one thinks that marijuana’s potential for abuse is lower than that of other drugs on Schedule I (like LSD), it’s widely accepted that marijuana has at least SOME potential for abuse. And because of it does, the CSA requires the drug to remain scheduled (at least somewhere on Schedules I-V). Simply put, the CSA just doesn’t allow any psychoactive drug (i.e., drug of abuse) to be legalized for recreational use, i.e., to be de-scheduled.

Now, as I hinted above, there are two notable exceptions to this rule. Namely, there are two drugs of abuse that are legal at the federal level for recreational use (and despite having no proven medical utility): Alcohol and Tobacco. But those two drugs of abuse are not scheduled because Congress expressly exempted both of them from the CSA back in 1970. It expressly declared that “The term ‘controlled substance’ . . . does not include distilled spirits, wine, malt beverages, or tobacco.” 21 U.S.C. Section 802. Without this express exemption from the statute, alcohol and tobacco would both now be in the same boat as marijuana – on Schedule I, and banned outright under federal law. The President (via the AG) would be powerless to remove them from the coverage of the CSA, regardless of the wisdom of such a move.

There are other limits on the AG’s scheduling authority under the CSA, but these two examples should suffice to show that the AG could not legalize marijuana for recreational use by de-scheduling the drug. Ultimately, any proposal to legalize marijuana via executive action is, well, a pipe dream. It will take congressional action to legalize this drug for recreational purposes under federal law. So don’t expect the President to do so, or, conversely, blame the President when he / she does not.

For some very useful analyses of international drug control conventions (and their treatment of marijuana), see:

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  • Paul Kuhn

    March 19th, 2020

    Extremely helpful in discussing this issue with others. I thought the President could with the stroke of a pen legaliize cannabis. Glad to be corrected.