{"id":937,"date":"2021-11-04T14:44:37","date_gmt":"2021-11-04T19:44:37","guid":{"rendered":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/?p=937"},"modified":"2021-11-04T14:44:37","modified_gmt":"2021-11-04T19:44:37","slug":"crs-wrongly-suggests-potus-could-legalize-marijuana-on-his-own","status":"publish","type":"post","link":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2021\/11\/crs-wrongly-suggests-potus-could-legalize-marijuana-on-his-own\/","title":{"rendered":"CRS Wrongly Suggests POTUS Could Legalize Marijuana on His Own"},"content":{"rendered":"

The title of this post is inspired by a new \u201creport\u201d issued by the Congressional Research Service (CRS). I think calling it a \u201creport\u201d is giving it too much credit — it\u2019s five thinly researched pages of text that simply repeats the old but unfounded idea that the President could unilaterally legalize marijuana federally, without Congress lifting a finger. The document can be found here.\u00a0Does the President Have the Power to Legalize\u00a0Marijuana?<\/a><\/p>\n

As I\u2019ve explained in detail elsewhere, Congress has not given POTUS or anyone else in the Executive branch the authority to legalize marijuana federally. See my earlier post, Why the President Cannot Legalize Marijuana via Executive Action<\/a>, and the law review article on which it is based,\u00a0 POTUS and Pot: Why the President Could Not Legalize Marijuana Through Executive Action<\/a>, 89 U. Cinn. L. Rev. 668 (2021).<\/p>\n

To be sure, Congress has authorized the Attorney General (AG) to re- and even de- schedule drugs under the Controlled Substances Act (CSA). And yes, de-scheduling marijuana would legalize the substance. The CRS pamphlet seems to base its conclusion entirely on the fact that the AG has some scheduling power under the CSA. The problem is, Congress carefully limited that power, but the CRS pamphlet completely ignores those limitations.<\/p>\n

In POTUS and Pot, I highlighted and explained those limitations on the President\u2019s scheduling authority. First, to re- or de- schedule marijuana under the CSA, POTUS, acting through the AG, must determine that the statutory criteria for\u00a0that move have been satisfied. That\u2019s been the sticking\u00a0point for efforts to reschedule marijuana for the past five decades. To move marijuana off of Schedule I, the statute says you have to demonstrate that it has medical utility. And to\u00a0demonstrate medical utility\u00a0requires conducting some large scale well-controlled clinical studies of the drug. To date, no such studies have been completed. Thus, there\u2019s no way for the AG to conclude (in consultation with the FDA) that marijuana has the medical utility needed to move it off of Schedule I.<\/p>\n

Second, Congress required the AG to abide by international treaties when re- or de-scheduling drugs. International treaties, however, specify that marijuana must be placed on Schedule II at a minimum. Thus, even if the AG concluded that marijuana had medical utility — indeed, even if the AG concluded that marijuana had no abuse potential whatsoever (which would normally enable de-scheduling it) — the AG at most could move marijuana to Schedule II. But while moving marijuana to Schedule II would legalize marijuana in a very limited way, that\u2019s not what most people have in mind when they think of \u201clegalization.\u201d After all, cocaine is a Schedule II drug, but no one talks about cocaine being \u201clegal\u201d because Schedule II drugs are still very tightly controlled.<\/p>\n

Unfortunately, the CRS completely ignores those limitations. In fact, the brief pamphlet spends only a few lines discussing POTUS power at all.<\/p>\n

The CRS pamphlet is unfortunate because it helps perpetuate a myth, one that is misguided, dangerous, and counter-productive. The idea that POTUS can legalize drugs like marijuana is misguided because it ignores the legal constraints Congress has imposed on POTUS\u2019s power under the CSA. The idea is dangerous because of the precedent it sets. If the CRS is right, then POTUS could legalize not only \u201cmarijuana\u201d but LSD, heroin, etc. Even if those actions wouldn\u2019t bother you, it\u2019s not hard to come up with other\u00a0presidential actions that might offend —\u00a0e.g., imagine POTUS claiming the power to suspend federal taxes on his\/her friends. Lastly, the\u00a0myth\u00a0the CRS pamphlet unthinkingly\u00a0perpetuates is counter-productive because it takes pressure off of Congress to legislate. We shouldn\u2019t let Congress off the hook for the drug laws we have now. Only Congress can fundamentally change those laws. When the CRS — or members of Congress (see here<\/a>) — push the idea that President Biden could fix our drug laws, it allows them to shift the blame on POTUS. I don\u2019t think we should let them do that.<\/p>\n","protected":false},"excerpt":{"rendered":"

The title of this post is inspired by a new \u201creport\u201d issued by the Congressional Research Service (CRS). I think calling it a \u201creport\u201d is giving it too much credit — it\u2019s five thinly researched pages of text that simply repeats the old but unfounded idea that the President could unilaterally legalize marijuana federally, without…<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[6,258,702,302,703,528,602,211,15,5,701,601,603],"class_list":["post-937","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-cannabis","tag-congress","tag-congressional-research-service","tag-controlled-substances-act","tag-crs","tag-decriminalize","tag-deschedule","tag-legalize","tag-marihuana","tag-marijuana","tag-potus","tag-president","tag-reschedule"],"_links":{"self":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/937","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=937"}],"version-history":[{"count":1,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/937\/revisions"}],"predecessor-version":[{"id":938,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/937\/revisions\/938"}],"wp:attachment":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=937"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=937"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=937"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}