Obama, Who Evidently Has Not Read the Controlled Substances Act, Denies That He Has the Power to Reclassify Marijuana



In an interview with CNN's Jake Tapper that aired last night, President Obama tried to dodge responsibility for eliminating the contradiction between his recent comments about marijuana and its classification as a Schedule I drug under the Controlled Substances Act:

Tapper: You said that smoking pot was a bad habit but you didn't think it was any worse for a person than drinking. Now that contradicts the official Obama administration policy, both on the website of the Office of National Drug Control Policy and also the fact that marijuana is considered a Schedule I narcotic, along with heroin and Ecstasy. Now do you think you were maybe talking just a little too casually about it with Remnick in The New Yorker, or are you considering not making marijuana a Schedule I narcotic?

Obama: Well, first of all, what is and isn't a Schedule I narcotic is a job for Congress.

Tapper: I think it's the DEA that decides that.

Obama: It's not something by ourselves that we start changing. No, there are laws undergirding those determinations.

Tapper: Would you support that move?

Instead of answering that question, Obama started talking about a "public health" approach to marijuana (a subject I address in another post). But notice that Obama at first denied that the executive branch has the power to reschedule drugs, saying "what is and isn't a Schedule I narcotic is a job for Congress." As Tapper pointed out, that's not true. While Congress can amend the Controlled Substances Act (CSA) to increase or reduce restrictions on particular drugs, the statute also gives that power to the attorney general, who has delegated it to the Drug Enforcement Administration (a division of the Justice Department). In fact, the DEA has repeatedly rejected petitions to reschedule marijuana, most recently in 2011. I forget: Who was president then?

Apparently Obama forgot too. Obama often speaks as if he is an outside observer of his own administration—condemning excessively long prison sentences while hardly ever using his clemency power to shorten them, sounding the alarm about his own abuses of executive power in the name of fighting terrorism, worrying about the threat to privacy posed by surveillance programs he authorized. Now here he is, trying to distance himself from his own administration's refusal to reclassify marijuana.

When Tapper blocked that evasive maneuver, Obama tried another one. "There are laws undergirding those determinations," he said, implying that the language of the CSA somehow dictates that marijuana remain on Schedule I. These are the statutory criteria for drugs in that category:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

The DEA argues that marijuana satisfies the first criterion because people like to consume it for nonmedical purposes, which according to the DEA qualifies as abuse. It's illegal, after all. According to that definition of abuse, prohibition justifies itself, which hardly seems fair. A more reasonable view defines abuse as harmful, excessive, or problematic use. Regardless of which definition you prefer, it is hard to see in what meaningful sense marijuana has a higher abuse potential than, say, the barbiturates and benzodiazepines on Schedule III. According to the DEA, even dronabinol has a lower abuse potential than marijuana. What is dronabinol? A synthetic version of THC—the main psychoactive ingredient in marijuana.

The DEA says marijuana meets the second criterion—no currently accepted medical use—not because the drug is ineffective at treating symptoms such as nausea, pain, and muscle spasms (in fact, the Obama administration concedes the medical utility of cannabinoids) but because such uses have not gained wide enough acceptance within the medical community. Given the subjectivity of that judgment, it amounts to saying that marijuana has no accepted medical use because the DEA deems medical use of marijuana unaccceptable. The agency likewise does not accept that marijuana can be used safely, although it obviously can, as Obama conceded when he observed that alcohol is more dangerous.

The DEA clearly is bending over backward to keep marijuana on Schedule I, and nothing in the CSA requires it to do that. It could easily apply the CSA's criteria in a way that would make marijuana less restricted, and the decision not to do so is ultimately Obama's. He is the one who appointed the current DEA administrator, a hardline holdover from the Bush administration who is so committed to prohibitionist orthodoxy that she recoils in horror at the thought of a hemp flag flying over the Capitol and could not restrain herself from openly criticizing Obama, notionally her boss, for his scientifically uncontroversial statement about the relative hazards of marijuana and alcohol. He is the one who, despite his avowed commitment to sound science and his own statements to the contrary, allows the DEA to insist marijuana is so dangerous that it must be more tightly restricted than cocaine, morphine, oxycodone, and methamphetamine.

"It's very unfortunate that President Obama appears to want to pass the buck to Congress when it comes to marijuana laws," says Tom Angell, chairman of Marijuana Majority. "If the president truly believes what he says about marijuana, he has a moral imperative to make the law match up with his views and the views of the majority of the American people without delay. He should initiate the long overdue rescheduling of marijuana today."