Marijuana Law, Policy, and Authority

Why the President Cannot Legalize Marijuana via Executive Action

Posted by on Wednesday, September 30, 2020 in News, Updates.

I have just posted a paper addressing the question posed by the title of this post. Here’s a link to the paper on SSRN:

POTUS and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action

And here’s the abstract:

Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election has shown that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several erstwhile presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead. This Essay warns that such promises are both misguided and dangerous, because they ignore statutory and constitutional constraints on the President’s authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation. To be clear, this Essay is not a defense of our current federal marijuana policy. That policy is a mess, regardless of one’s views towards legalization. But proponents of reform need to recognize that Congress made this mess, and only Congress is capable of cleaning it up.

The article is forthcoming in the University of Cincinnati Law Review. It’s based on the keynote address I gave at the UC Law School symposium, A Fresh Take on Cannabis Regulation, which was held back in March. I outlines some of the constraints on Presidential authority in an earlier post, Could the President Legalize Marijuana Through Executive Action? The article expands upon some of the points made in that post, and it also draws a parallel between promises made by former candidates Bernie Sanders and Elizabeth Warren to legalize marijuana through Presidential decree, and Trump’s alleged interference with the process for approving COVID-19 treatments and vaccines.

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