Marijuana Rules Could See Change from the Federal Government | March 2024
March 2024 | Volume 15, Issue 8
Watch the full video and find the accompanying article from USA Today.
Marijuana remains in an odd legal limbo in the United States, and there is one organization at the center of it: The Drug Enforcement Administration (DEA).
The DEA has for decades held that marijuana is among the most dangerous, highly addictive drugs and has no medical value, despite growing state laws, medical evidence, and popular opinion to the contrary. The result: Pot is widely available in some states, heavily criminalized in others — and technically federally illegal everywhere.
The confusion could be cleared up by the U.S. Congress or the courts intervening, according to Carmel Shachar, Harvard School of Law professor and the faculty director Health Law and Policy Clinic. But in the absence of bold congressional action on marijuana, experts and advocates are looking to the DEA to make the next move to change the nation's position on pot.
President Joe Biden has said he is one of the people who disagrees with the DEA's categorization of marijuana, and called for a review in 2022, kicking off a bureaucratic slog that could soon change the status quo.
Here is what to know:
The DEA Says Pot Is the Worst Kind of Drug
The DEA says marijuana is classified as a "Schedule I" drug under the Controlled Substances Act, alongside heroin, LSD, and ecstasy.
The statute classifies drugs from Schedule I to Schedule V based on their potential for abuse, addictiveness, and medical use. Schedule I drugs have "high potential for abuse and the potential to create severe psychological and/or physical dependence" and "no currently accepted medical use," the DEA says.
"Cocaine, morphine, and methamphetamines are all Schedule II, meaning they have been determined to have some medical value. It feels very strange to have marijuana be more restricted than these substances," Shachar said.
Putting marijuana in Schedule I also places huge obstacles in the way of doing the kind of research that would be needed to prove there are medical uses, according to Heather Trela, the director of operations and a fellow at the Rockefeller Institute of Government out of the State University of New York.
That has created a feedback loop: It's hard to study pot to prove its medical value, because the federal government says it has no medical value.
Why Is Pot Classified as Most Dangerous?
Marijuana has been a Schedule I drug since the statute went into effect in 1971, "with very little medical or scientific evidence to demonstrate why it had to be Schedule I," said Shachar.
At the time, it had more to do with "who uses the drug than the drug itself," said Trela.
It was under President Richard Nixon that marijuana was added to the list under the most restricted category – first, only provisionally until more of the science could be settled, Trela said.
Yet even when a commission formed by Nixon determined weed shouldn't be criminalized, it remained in Schedule I. Trela said Nixon knew marijuana was a "drug associated with the anti-war protesters, hippies and people of color – none of whom were fans of President Nixon and his agenda."
A top adviser to Nixon, John Ehrlichman, said as much in an interview in 1994 that was published by Harper's Magazine in 2016: "Did we know we were lying about the drugs? Of course we did."
What Could Happen Next?
The next expected development is considered by advocates as a small step: The DEA is currently considering reclassifying marijuana as a lower-level controlled substance, but that wouldn't make it legal.
"It's a step in the right direction but, in terms of its practical direction, it's really more symbolic," said Morgan Fox, political director for the National Organization for the Reform of Marijuana Laws, the country's oldest cannabis legalization advocacy group.
In 2022, President Joe Biden asked his Department of Health and Human Services to conduct a review of how marijuana is classified, and HHS recommended last year that cannabis be rescheduled as a Schedule III substance, like ketamine, testosterone, anabolic steroids or Tylenol with codeine.
If marijuana is put in Schedule III instead, it would mean it could be legally prescribed by licensed healthcare providers and dispensed at licensed pharmacies. It could also help resolve a massive federal tax burden that has been placed on cannabis companies.
"It partially sends a signal that the federal government doesn't think cannabis is the worst of the worst drugs. 'Not as bad as heroin;' that's a good thing for the government to say," said Jay Wexler, a law professor at Boston University who wrote the book "Weed Rules: Blazing the Way to a Just and Joyful Marijuana Policy."
But practically, rescheduling wouldn't have much of an effect on state cannabis programs at all, Wexler said, and "everything states are doing is still a violation of federal law, and anybody who's selling, buying, processing, growing cannabis under these state programs is still in violation of federal law even if it's rescheduled."
The DEA has not provided a timeframe on if or when an announcement on rescheduling might occur.
What Would It Take to Make Marijuana Fully Legal?
To eliminate the stark conflict between state and federal laws, marijuana would need to be removed from the Controlled Substances Act list altogether. Experts say there is a chance that could happen eventually, but it is still a long way off.
"I think it's going to take time, but I think we will get there," Trela said.
Just as alcohol and tobacco are not considered controlled substances but are regulated by the federal government and by states, descheduling cannabis could have a similar effect, Wexler said.
A group of Democratic senators – plus Bernie Sanders, who is an independent but joins with Democrats on major issues – wrote a letter to Attorney General Merrick Garland and DEA Administrator Anne Milgram in January 2024 urging the descheduling of marijuana.
What Is Taking So Long?
Public support for the legalization of marijuana is at an all-time high, national polling has shown. A Gallup poll conducted in the fall found that 70 percent of Americans support legal weed. In 2022, the Pew Research Center found that just 10 percent of Americans believe it should be completely illegal, while 30 percent support medical use only, and 59 percent support legalization for medical and recreational use.
That public support has been bumped by Americans seeing first-hand through loved ones and news stories that marijuana can have medical benefits for people with illnesses who can't get any relief otherwise, Wexler said.
"Why doesn't that translate into clear political outcomes to deschedule cannabis? I don’t know," Wexler said.
Experts said a combination of factors may be at play, including a desire to move toward full legalization incrementally. Legalization is also up against several top-line priorities, and support from the public and lawmakers is not uniform, Trela said.
"There is still a perception by many and belief that this is not where we should be going; the government should not be encouraging drug use, in their minds," Trela said. "We're not that far removed from the stigma of marijuana."
And, while many states and physicians have recognized marijuana's potential medical benefits, there are still health risks associated with the substance under study and a lot of unknowns.
Advocates are hopeful weed will eventually be removed from the Controlled Substances Act altogether, but it doesn't look like marijuana will be legalized on the federal level anytime soon.
"Rescheduling is a step forward, but it is not nearly enough. And there is no reason to keep cannabis in the Controlled Substances Act," Wexler said.
Discussion Questions
- What is the Drug Enforcement Administration (DEA), and what is its mission?
The Drug Enforcement Administration (DEA) is a United States federal law enforcement agency under the U.S. Department of Justice that is tasked with combating illicit drug trafficking and distribution within the U.S.
According to its website (www.dea.gov), the DEA’s mission is “to enforce the controlled substances laws and regulations of the U.S. and bring to the criminal and civil justice system of the U.S., or any other competent jurisdiction, those organizations and principal members of organizations, involved in the growing, manufacture, or distribution of controlled substances appearing or destined for illicit traffic in the U.S.; and to recommend and support non-enforcement programs aimed at reducing the availability of illicit controlled substances on the domestic and international markets.” - In your reasoned opinion, should marijuana be classified as a "Schedule I" drug under the Controlled Substances Act? Why or why not?
This is an opinion question, so student responses may vary.
As indicated in the article, the federal government classifies marijuana as a “Schedule I” drug under the Controlled Substances Act, alongside heroin, LSD, and ecstasy. The Act classifies drugs from Schedule I to Schedule V based on their potential for abuse, addictiveness, and medical use. According to the DEA, Schedule I drugs have "high potential for abuse and the potential to create severe psychological and/or physical dependence" and "no currently accepted medical use.”
As the article further indicates, cocaine, morphine, and methamphetamines are all Schedule II drugs, meaning they have been determined to have some medical value. Classifying marijuana as a Schedule I drug places substantial obstacles in the way of establishing, by way of scientific research, viable medical uses for marijuana. It is difficult to study marijuana to prove its medical value because the federal government says it has no medical value.
Your author finds it incongruous to conclude, particularly without further research, that cocaine, morphine, and methamphetamines all have some medical value while marijuana does not. - In your reasoned opinion, is the legalization of marijuana best left to the states to decide, or should this be decided “once and for all” by the federal government? Explain your response.
This is an opinion question, so student responses may vary. While some may view the legalization of marijuana as a “states’ rights” issue, deferring to the states has translated into a “patchwork quilt” of state laws across the country—presently, 24 states have legalized recreational marijuana, while 38 states have legalized it for medicinal use.
Note the incongruity between federal and state law—Federal law currently declares that marijuana has no medicinal value, while a substantial majority of states (38) have legalized it for medicinal use.
In your author’s opinion, this issue is “ripe” for review by the federal government, although so doing would call for an “Act of Congress” (both literally and figuratively!)