Mark Kleiman Admits That Rescheduling Marijuana Would Have an Impact After All

CNNCNNMark Kleiman continues to insist that I am "talking through [my] hat" on the subject of rescheduling marijuana, but the reason he gives for saying so has changed. At first he claimed I had exaggerated the impact of rescheduling, which was weird, since the post he was criticizing said nothing about the impact of rescheduling, focusing instead on the question of whether the Obama administration has the authority to reclassify marijuana without new legislation from Congress. As Kleiman conceded, the answer to that question is yes, although President Obama suggested otherwise in a CNN interview. In any case, Kleiman was clearly wrong to say that the "practical effect" of moving marijuana out of Schedule I would be "identically zero"—or, as he put it on Twitter, that "rescheduling does nothing." He has since retreated from that position without acknowledging that he has ceded any ground. Now he says rescheduling marijuana would be "mostly pointless" and/or that its effects would be "mostly symbolic." These clams are more defensible, although advocates of rescheduling might nevertheless take issue with them (especially the first one).

So what is Kleiman now claiming I got wrong? He thinks I should not have suggested that Obama himself has the power to reclassify marijuana. "In fact," Kleiman writes, "the Controlled Substances Act [CSA] gives that power to the Attorney General," who "has delegated his responsibility to the DEA Administrator." I am aware of that, which is why I said, in the very post that prompted Kleiman's initial tirade, that the CSA "gives that [rescheduling] power to the attorney general, who has delegated it to the Drug Enforcement Administration." I nevertheless think it is reasonable to believe Obama might have some influence over his own attorney general, an appointee he can fire at will.

Which brings us to the letter that Rep. Earl Blumenauer (D-Ore.) and 17 other members of Congress sent the president last week. Blumenauer et al. argue that marijuana does not meet the criteria for Schedule I and urge Obama to "instruct Attorney General Holder to delist or classify marijuana in a more appropriate way, at the very least eliminating it from Schedule I or II." Kleiman says these legislators do not understand the law either, but it is not clear why he says that. "It's not as simple as someone saying, 'Gee, I’d like to reschedule cannabis this morning,'" Kleiman writes, since the CSA lays out a process to follow, including consultation with the Department of Health and Human Services. That is true, but I do not see where Blumenauer et al. claim otherwise. Although rescheduling would not happen instantly, even beginning the process could help advance the debate about marijuana prohibition by calling attention to the questionable distinctions drawn by our drug laws.

Kleiman emphasizes that the attorney general's rescheduling power is "not arbitrary." That's true in the sense that his power is constrained by the statute in certain ways. For example, the CSA's reference to treaty obligations seems to preclude removing marijuana from the schedules entirely. But as Alex Kreit notes, the CSA gives the attorney general (and therefore the DEA) a great deal of discretion in interpreting and applying the scheduling criteria, since it leaves key terms such as "potential for abuse" and "accepted medical use" undefined. The DEA has bent over backward to justify keeping marijuana on Schedule I, and nothing in the statute requires it to do that.          

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  • Irish||

    Sullum, I don't know how you can dare to criticize a genius like Mark Kleiman. I mean, here you are using things like 'facts' and 'evidence' when Kleiman knows that the really smart people argue by claiming that their opponents are in the pocket of corporate paymasters.

  • ||

    I've heard tell that Kleiman (deleted) with (deleted), (deleted) and (deleted), while (deleted) his (deleted).

    But that could just be a rumor.*

    *he seems like the type of asshole that would sue Reason and individual commenters for making jokes.

  • Dead or In Jail||

    Sullum's sin was daring to question Kleiman's Idol, his Messiah, his GOD.

    Kleiman's also mad because his teeth have been forcibly dislodged from the taxpayer teat and a phalanx of untutored and unwashed entrepreneurs are rolling up their sleeves to do the hard work that Kleiman could not accomplish from his lofty, Ivory Tower perch.

    If you've followed the Professor's blog (out of a morbid sense of masochism), you can see that he is unsubtly positioning himself to be Hill-dawg's Drug Czar. Honestly, the bowing and scraping, the fawning and toadying, the fearful trembling--it's unbecoming even to Professor Kleiman's dignity.

  • Irish||

    OT: From the comments of a Daily Beast article about Venezuela:

    Typical right-wing simplification of a complex issue, uncritically reproducing the perspective of the privileged elites who are threatened by what has happened in Venezuela. Many people seem to have strong opinions on Venezuela but lack any deeper understanding of the issues; their “information” comes from U.S. media sources or from one or two personal sources (an upper middle-class Venezuelan “friend”). The spoiled, disconnected children of Venezuela’s elite (the type of person who can afford to study at universities abroad) should realize that this elite created Chavez through their policies which created one of the most unequal societies on earth. As for the government using violence against student protestors, this is essentially fabricated. There has been mild repression used over the past few days, but the protestors have hardly been peaceful. They have used violence and have attacked and destroyed government property with the intent of overthrowing the government. Any government, including those in democracies of the “North” will respond with force when threatened with forces attempting to topple it.

    Good God.

  • SugarFree||

    Replace "government" with "campus administration" and this sounds just like the people on here who sided with the campus pig that pepper sprayed all those kids and then won a lawsuit because people were mean to him about.

  • ||

    No matter what it is, the class warfare and abjectly bitter envy comes bleeding through. It's hilarious how pretty much all of leftist thought boils down to "I hate those people who have more money than me, and will excuse any horror if it just takes them down a notch!"

  • Irish||

    their “information” comes from U.S. media sources or from one or two personal sources

    This is my favorite part. Venezuela's government has been banning foreign news organizations from the country because they were covering the protests. The actually shut down a Columbian network that broadcast in Venezuela because the network was showing footage of the protests.

    As a result, it's difficult to take someone seriously when they're defending Venezuela but claiming that U.S. medic sources are terrible. At least the U.S. doesn't ban dissent and have a state run media.

  • ||

    No, the US media managed to become extremely statist all on its own.

  • juris imprudent||

    Only until the next Republican sits in the White House. Oh boy will they be enthusiastic dissenters THEN!

  • mad libertarian guy||

    Put journalists back to work: Vote Republican!!

  • Agammamon||

    . . . through their policies which created one of the most unequal societies on earth

    Do these people ever *read* what they write before hitting 'submit'?

    Venezuela, pre-Chavez, was far from 'one of the most unequal societies'. Currently, I can think of China, Cuba, North Korea, and Zimbabwe (in no particular order) as being far more unequal. I could add in *post-Chavez* Venezuela as being far more unequal than pre-Chavez.

    Or maybe that's their excuse - 'the society was unequal so, *of course* a strong-man had to step in and run it into the ground.

  • Calidissident||

    I don't know the specific stats, but it would probably depend on the meaning of "most unequal." Although there's a lot of competition for that spot, so I don't know if pre-Chavez Venezuela was that close to the bottom, Venezuela before him was no free market paradise or anything like that. There was a ton of corruption and government-created inequality and poverty. Obviously, Chavez was not the right answer to fix those problems, and he and Maduro have made things worse, but they didn't singlehandedly impoverish Venezuela or anything like that.

  • SugarFree||

    It's nice to an Obama supporter admit that there is some limit to president's power, but sad to see it is over a minor issue like marijuana rescheduling and not Obamacare shenanigans, drone kill lists, or the NSA.

    Of course, how seriously can you take someone who can say something like this with a straight face: more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time?

  • sarcasmic||

    Use is abuse! Didn't Nancy Reagan teach you anything?

  • SugarFree||

    She taught me it was OK for a Cancer to love a Taurus.

  • sarcasmic||

    I'm a Cancer and my wife is a Taurus. How did you know?

  • Nazdrakke||

    You married a car?

  • SugarFree||

    She's been good to me.

  • sarcasmic||

    I actually had a Taurus and it wasn't a bad car. Definitely not marriage material though.

  • Nazdrakke||

    Now he says rescheduling marijuana would be "mostly pointless" and/or that its effects would be "mostly symbolic."

    That's an interesting way to sum up the deleterious effects of sending harmless person after person through the criminal "justice" system for a behavior that harms no one.

  • sarcasmic||

    Marijuana must remain illegal! How else are the cops going to go after people who sell dangerous drugs like heroin or cocaine? Cops need that gateway to the black market! Without the ability to pressure dope smokers into giving up their dealers, who then give up other dealers, who finally reach people who sell "hard" drugs, how else will cops find the people who peddle that stuff?

    Never mind that closing that gateway for the cops would also close it for everyone else, making it that much more difficult for the average person to use or try those substances.

  • GILMORE||

    " "In fact," Kleiman writes, "the Controlled Substances Act [CSA] gives that power to the Attorney General," who "has delegated his responsibility to the DEA Administrator."

    I am aware of that, which is why I said, in the very post that prompted Kleiman's initial tirade, that the CSA "gives that [rescheduling] power to the attorney general, who has delegated it to the Drug Enforcement Administration."

    As Anonbot might say, "Sometimes you just need to roll with the punches dude"

    Or, as I would say - *if* I were an OG Pimp =
    "Bitch, you heard what I said."

  • Agammamon||

    You know what's strange about how the executive branch works? In the military (Navy), a commander can delegate some of his authority to a subordinate - that subordinate can not further delegate that authority.

    As an example - a commanding officer has the authority to authorize liberty (time-off work). He can (and often does) delegate the authority to approve liberty to a subordinate, with appropriate limits. Say to a Division Officer - that DivO can not then go and give his LCPO permission to authorize liberty in the DivO's stead.

    And yet, that's exactly how our whole government is run. Legislative delegates its authority to make law to the Executive, each executive delegates decision making authority to a subordinate who then delegates it to another subordinate.

    And then the President's excuse is 'its not my decision to make'.

  • GILMORE||

    It is inherently political. They want to wield power without accepting responsibility for its effects.

    Which is this Kleiman's schtick = he will niggle all day about stuff that in fact is not even a point of disagreement. They don't seem to disagree on any "Facts" at all.

    His issue is that Jacob's spin on reality isn't exactly *favorable* to the admin. He wants to re-order the exact same facts in such a manner as to appear that the administration is being prudent and wise and considerate and while there COULD be things they could do they probably wouldn't HEM HAW HEM HAW HEM HAW because TEAM.

  • robc||

    That would make for an interesting and bizarre constitutional amendment.

    I doubt most people would understand the dramatic effect it would have.

  • anomdebus||

    Even if this is the line they want to take, then doesn't that make it that much easier to take the "controversial" stand re: rescheduling?
    Obama could publicly state:

    I have asked the Attorney General to look into rescheduling. He is the best person to make that determination, if he looks into it and decides that it is currently correctly, I will trust his judgement.
  • Ken Shultz||

    "The post [Kleiman] was criticizing said nothing about the impact of rescheduling, focusing instead on the question of whether the Obama administration has the authority to reclassify marijuana without new legislation from Congress."

    It would be interesting to hear if Kleiman thinks that Barack Obama has the authority to delay the ObamaCare employer mandate.

    Somehow, when the president doesn't have the authority to do something his cheerleaders like, they claim he has the authority even when he doesn't, and when people want the president to do something his cheerleaders don't like, somehow they pretend he doesn't have that authority when he does.

    Anyway, from what I've seen, Kleiman is an excellent example of political advocacy masquerading as scholarship. If he had simply admitted his error, like a scholar, he wouldn't have made such an ass of himself and the academic institution he represents.

  • sarcasmic||

    Principals trump principles.

  • Ken Shultz||

    Isn't that a fact!

    "In fact," Kleiman writes, "the Controlled Substances Act [CSA] gives that power to the Attorney General," who "has delegated his responsibility to the DEA Administrator." I am aware of that, which is why I said, in the very post that prompted Kleiman's initial tirade, that the CSA "gives that [rescheduling] power to the attorney general."

    Kleiman isn't even trying to defend a principle anymore.

    He's just trying to deflect blame away from President Obama, personally, and direct it towards his Attorney General.

    It appears to be all about defending Barack Obama, personally, from criticism.

    I suspect Kleiman believes everything he's read in the opinion columns about the Tea Party, and he thinks attacking Sullum is somehow a political response to right wing extremism.

    If he knew anything about Sullum, he'd realize how ridiculous he's making himself look to everyone who does know something about Sullum.

    Hey Kleiman, if you're reading this? What Sullum has to say about Barack Obama doesn't have anything to do with the fact that Obama is a Democrat--and Sullum ain't no Republican.

  • Nazdrakke||

    He's just trying to deflect blame away from President Obama, personally, and direct it towards his Attorney General.

    Well I mean it's a great point. I know my boss has absolutely no control over the way I do my job. Wait..

  • Ken Shultz||

    Yeah, being responsible for what the people under you do is...the definition of management.

    But why does Kleiman care about--making sure Obama isn't held responsible for what the Obama Administration does?

    Sullum was saying that the Obama Administration should do something, and Kleiman claimed that was unpossible.

    Once Sullum called Kleiman on his derp, Kleiman started flailing wildly, and he's been flailing ever since.

    Kleiman's behavior is so...unacademic.

  • Ken Shultz||

    I pointed out the following in the last thread on this controversy: Usually, academics are loathe to get in arguments with opinion journalists because academics have to behave by academic standards and opinion journalists don't!

    Opinion journalists can respond to your logical arguments by editing in comedy sketches between your comments, like they do on the Daily Show--why would academics who have to abide by academic standards subject themselves to that?

    The funny thing is that this is just the opposite of that. Sullum is the one who keeps behaving like an academic--and abiding by academic standards--and Kleiman, a Professor of Public Policy at the UCLA School of Public Affairs, is the one writing stuff like:

    "But the next time [Jacob Sullum] decides to accuse the President – who in real life was a law professor – of not having read the law, perhaps Sullum will consider … reading the law."

    We're supposed to accept the president being (at best) incorrect as truth--becasue the president was a law professor? This is academic behavior by Kleiman?!

    Or how 'bout this little gem from Kleiman:

    "Tom Angell’s feelings are hurt because I was mean to poor widdle Jacob Sullum."

    This is an academic's response to Kleiman being wrong? Jacob Sullum, the opinion journalist, is making Kleiman look like a freshman Philosophy 101 flunkie.

  • General Butt Naked||

    Gawd, I hope Kleiman is reading this, 'cause you're absolutely tearing that stooge apart.

  • Erik Jay||

    First paragraph; "loath" is the word you want, not "loathe" -- but this is a more sophisticated erratum than usual around here. You could have dropped "are" and it would have been correct the way you spelled it, but in the construction you use it is not.

  • Ken Shultz||

    Grammar Cop much?

    If all you have to criticize is my grammar, then I must be doing well.

  • mad libertarian guy||

    We're supposed to accept the president being (at best) incorrect as truth--becasue the president was a law professor? This is academic behavior by Kleiman?!

    Of course all one need do to counter this pile of dog shit is point Kleiman to the post that shows all of the smackdowns the Obama administration has suffered via the Nazgul.

  • GILMORE||

    "
    sarcasmic|2.16.14 @ 11:46AM|#

    Principals trump principles."

    And snitches get stitches, else the bitches gonna end up in ditches.

  • Nazdrakke||

    The drug war, the real third rail of american politics.

  • Ken Shultz||

    "First they ignore you, then they laugh at you, then they fight you, then you win."

    Read more at http://www.brainyquote.com/quo.....2x6wQh8.99

  • ~Knarf Yenrab~||

    Anyway, from what I've seen, Kleiman is an excellent example of political advocacy masquerading as scholarship. If he had simply admitted his error, like a scholar, he wouldn't have made such an ass of himself and the academic institution he represents.

    If he did that, no one would've heard of him and Sullum wouldn't've written this series of articles. We've reached the point where political punditry has taken the same tack as pop music: be outrageous, attract attention, and don't worry about the actual merit of your output, as most of your audience can't tell the difference.

  • The Late P Brooks||

    He thinks I should not have suggested that Obama himself has the power to reclassify marijuana. "In fact," Kleiman writes, "the Controlled Substances Act [CSA] gives that power to the Attorney General," who "has delegated his responsibility to the DEA Administrator." I am aware of that, which is why I said, in the very post that prompted Kleiman's initial tirade, that the CSA "gives that [rescheduling] power to the attorney general, who has delegated it to the Drug Enforcement Administration." I nevertheless think it is reasonable to believe Obama might have some influence over his own attorney general, an appointee he can fire at will.

    Buck-Passer-in-Chief

  • Ken Shultz||

    Obama just works there.

    How's he supposed to know what to do?

    Maybe the reason Sibelius had a dozen meetings with Obama and didn't update him is because Obama is only nominally in charge anyway.

    Everybody's got somebody in the office like that. Somebody who's supposed to be at meetings and in charge of something or other, but when an important meeting gets called on the spot, and someone says, "Do you think we should notify George?", everyone else says, "Eh, why bother?".

  • ||

    This sums up Obama's administration quite nicely I think.

  • juris imprudent||

    Obama has found the branch of govt he was elected to run to be large and complex.

    If only people would learn not to elect someone who looks and sounds good reading a teleprompter.

  • Cdr Lytton||

    I nevertheless think it is reasonable to believe Obama might have some influence over his own attorney general, an appointee he can fire at will.

    If he did, the transformation into Chocolate Nixon would be complete.

  • The Late P Brooks||

    As for the government using violence against student protestors, this is essentially fabricated. There has been mild repression used over the past few days, but the protestors have hardly been peaceful. They have used violence and have attacked and destroyed government property with the intent of overthrowing the government. Any government, including those in democracies of the “North” will respond with force when threatened with forces attempting to topple it.

    "Reporting from the steps of the Ministry of Information in beautiful Caracas, epicenter of the civilized world, this is Joe from Lowell; good day."

  • The Late P Brooks||

    Meanwhile...

    Banking is about risk management, MacDonald said. And it’s going to be up to bank managers and board members to determine if their risk is acceptable, he said.

    The main rub, according to the American Banking Association (ABA), is that guidance can be changed more easily than law, particularly if federal policy toward marijuana changes under a new presidential administration.

    ABA officials said they’d be comfortable only if Congress changes federal law to provide them legal protection when dealing with legitimate pot businesses.

    A top Treasury Department official tried to allay those concerns.

    “The guidance is clear. We’re not looking to have a gotcha enforcement regime,” said Jennifer Shasky Calvery, director of Treasury’s Financial Crimes Enforcement Network. “We’re going to focus on institutions that willfully act in contravention of guidance, not some technical mishap.”

    Kick the football, Charlie Brown. I won't pull it away, I promise.

  • ||

    The best part is that this is just another example of the administration and the government fucking the economy. There is so much money in weed, and even where it's legal, the banks don't dare get in on it, specifically because of the federal government. The growers need a place to put their money, and the banks want customers. But they don't dare with the vicious federal government hanging over them.

  • Rich||

    "It's not as simple as someone saying, 'Gee, I’d like to reschedule cannabis this morning.'"

    Why is Kleiman disrespecting President Obama like this?

  • ~Knarf Yenrab~||

    "In fact," Kleiman writes, "the Controlled Substances Act [CSA] gives that power to the Attorney General," who "has delegated his responsibility to the DEA Administrator." I am aware of that, which is why I said, in the very post that prompted Kleiman's initial tirade, that the CSA "gives that [rescheduling] power to the attorney general, who has delegated it to the Drug Enforcement Administration." I nevertheless think it is reasonable to believe Obama might have some influence over his own attorney general, an appointee he can fire at will.

    Well, shit.

  • Rich||

    it is reasonable to believe Obama might have some influence over his own attorney general, an appointee he can fire at will

    and a guy named *Holder*, to boot!

  • ||

    Frylock: Wake up, frat boy. Look, I hate to do this, but I’m gonna have to ask you to get off my lawn.

    DP: Oh man. What time is it?

    Frylock: It’s 1...in the afternoon.

    DP: Wake and bake, dude. Wake and bake. Are you holdin'?

    Frylock: No.

    DP: Did William Holden come to the party?

    Frylock: No.

    DP: You got Holden Caulfield in there, man?

    Frylock: No, we don’t do that here.

  • Thinking Clearly||

    The justification for keeping marijuana at schedule one does not exist. The justification for keeping the DEA in charge of these schedules does not exist either. There are reasons, but none of them are just. If we mean to save lives, if we mean to reverse the course of a racist drug war, its time to realize that what we have set up is not by any means just. If the purpose of the DEA has been to wage a war against drugs, its beyond high time to realize that it has failed its task and become destructive to the goals of a free society.

    Marijuana does not belong on those schedules at all. A resolution to the problem of having a failed drug war is to replace the failed efforts with something that works. A resolution to this problem will not come through the auspices of the DEA or the ONDCP. This entire scheduling system and its stewards are flawed.

  • General Butt Naked||

    The justification for keeping marijuana at schedule one does not exist.

    Ummm....

    DEA jobs, prison guard jobs, confiscated wealth to buy military toys, the rush that comes with the power over the citizenry, etc etc...

    Sure, they're not justifications for us, but they are justifications for the ruling elites and their thugs.

  • sarcasmic||

    Don't forget the addiction counselors whose services these addicts are compelled to purchase. That's big business.

  • General Butt Naked||

    Yeah there's so many actors with their hands in the cookie jar that you lose count.

  • ||

    Wow.

    The drug war has not failed. It has been and continues to be a raging success.

  • Pi Guy||

    its beyond high time

    What you did there, I see it

  • RSteeb||

    Attention DEA Administraitor, Attorney General, President Obama, or CONGRESS: Cannabis shall be removed from CSA "Schedule I", and placed in "CSA Subchapter I, Part A, §802. Definitions, paragraph (6)", appended to the list "distilled spirits, wine, malt beverages, or tobacco", where it will STILL be the least-toxic in the category [by several orders of magnitude].

    Anything short of THAT is UNACCEPTABLE.

    Thank you so very much for your attention to this atrocity.

  • Pi Guy||

    I agree with your assessment of "least toxic" but the real, Constitutional argument is does the FedGov even have this authority at all?

    No.

    Wanna hear it it Spanish? No.

  • General Butt Naked||

    I don't like the "safer drug" argument either. It implies that if compounds are "dangerous" as per some arbitrary guidelines the government would be right imprisoning people for selling/using those intoxicating chemicals.

  • Erik Jay||

    My friend ___ ___ has worked with Kleiman a few times. The tone Mr. Jackoff took in his attempted "rebuttal" columns is just the way he talks, too. He is the Estelle Getty of the Establishmentarian Left drug sorta-reformers and is a prissy, snippy, self-absorbed "little shit" in the opinions of MANY of the people who have to work with him. A lot of us are gifted, a lot of us are polymaths, a lot of us are erudite -- so, for me, I don't take condescension from ANYBODY, and would have taken off the mitts that Jacob kept on in his replies. I say, Screw you, Kleiman, you silly old woman. We'll do better without you, okay?

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