3 Reasons to Doubt the DEA Will Agree to Reclassify Marijuana This Year

The agency always drags its feet before saying no, saying yes would require an embarrassing reversal, and the president has passed the buck to Congress.


Jacob Sullum

In a memo it sent to members of Congress on Monday, the Drug Enforcement Administration (DEA) says it hopes to announce by the end of June whether it has decided that marijuana no longer belongs in Schedule I of the Controlled Substances Act (CSA), the law's most restrictive category. The memo, first noted yesterday by Washington Post drug policy blogger Christopher Ingraham, has generated headlines such as "The DEA Will Soon Decide Whether it Will Reschedule Marijuana" and "DEA May Downgrade Marijuana From Schedule 1 Drug." Here are three reasons I think those headlines are misleading:

1. The DEA has a history of foot dragging in response to rescheduling petitions. This is the fourth time the DEA has responded to a petition asking it to reclassify marijuana. It rejected the first three petitions from six to 16 years after they were filed. The fourth petition, filed in 2009 by New Mexico medical marijuana activist Bryan Krumm, and the fifth petition, filed in 2011 by Christine Gregoire, then the governor of Washington, and Lincoln Chafee, then the governor of Rhode Island, are still pending.

Last December, reported that the DEA had received a scientific evaluation and a scheduling recommendation from the Department of Health and Human Services (HHS), part of the process prescribed by the CSA. The story was based on a September 30 letter from Assistant Attorney General Peter Kadzik to Rep. Earl Blumenauer (D-Ore.) that said the DEA "recently received" the statutorily required input from HHS.

This week's memo reiterates that "DEA has received the HHS scientific and medical evaluations, as well as a scheduling recommendation, and is currently reviewing these documents and all other relevant data to make a scheduling determination in accordance with the CSA." It adds: "Once a final determination has been made, DEA will notify the petitioners. DEA understands the widespread interest in the prompt resolution of these petitions and hopes to release its determination in the first half of 2016." Assuming that happens, the decision (which I am sure has already been made) will be announced seven years after the 2009 petition and at least seven months after the HHS scheduling recommendation. This sort of delay is typical of the way that the DEA responds to rescheduling petitions, and it should not be interpreted as evidence that the agency is giving the issue more careful consideration than it has in the past, let alone that it has changed its position.

2. Agreeing to reschedule marijuana would require a major change in how the DEA interprets the CSA. Schedule I is supposedly reserved for drugs with a high abuse potential that have "no currently accepted medical use" and cannot be used safely, even under a doctor's supervision. It is doubtful that marijuana meets any of those criteria, let alone all three. But the DEA has always insisted that marijuana cannot be moved until its medical usefulness has been confirmed by the kind of expensive, large-scale clinical studies that the Food and Drug Administration demands before approving a new medicine. While such studies have been conducted with marijuana's main active ingredient (which is how Marinol, a capsule containing synthetic THC, was approved by the FDA in 1985), they have not been conducted with the whole plant.

The CSA gives the DEA wide discretion to define "currently accepted medical use," and federal courts have deferred to its interpretation. That does not mean the DEA has to read the law this way, but changing its approach at this point would require a dramatic reversal that could not be credibly attributed to new evidence.

3. The Obama administration says marijuana will be reclassified only if Congress decides to do so. "What is and isn't a Schedule I narcotic is a job for Congress," President Obama told CNN's Jake Tapper in 2014. "It's not something by ourselves that we start changing." Last January, White House Press Secretary Josh Earnest reiterated that Obama had no interest in administratively rescheduling marijuana: "There are some in the Democratic Party who have urged the president to take this kind of action. The president's response was, 'If you feel so strongly about it, and you believe there is so much public support for what it is that you're advocating, then why don't you pass legislation about it, and we'll see what happens.'"

Eric Holder, Obama's attorney general until last year—and therefore the official directly charged with deciding how controlled substances should be classified, a task that he, like his predecessors, delegated to the DEA—took the same line. Even when Holder said, 10 months after leaving the Justice Department, that marijuana "ought to be rescheduled," he added that "Congress needs to do that."

Although Gary Johnson is optimistic that the administration will change course this year, I see no reason to think the DEA's answer to the two most recent rescheduling petitions will be any different from its answer to the first three.

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  1. 4) FYTW

    1. Dammit.

      The classification as Schedule 1 has always been transparently and obviously illegal an contrary to the plain language of the statute. The only reason its classified that way is FYTW. The refusal of the courts to enforce the plain language of the statute on the FDA and the AG is a travesty, and should be Exhibit A in any indictment of the out-of-control regulatory state.

    2. 5) $27,342,950.59 (that is the Assets Seized (Value) from the 2014 Domestic Cannabis Eradication/Suppression Statistical Report.)

      1. 6) Employees 10,784 (2009) Annual budget US$2 billion (FY2014)

        Wouldn’t want to jeopardize any of that well-spent taxpayer funds.

        1. Pournelle’s Law


        2. 185K per employee. Yeah, tough to get them to agree to give that up.

  2. Since abuse seems to be defined as any use that violates a law, I guess it has high potential for abuse. Though legalizing it would solve that problem.

    Pretending that it can’t safely be used is absurd on every level.

    1. The government doesn’t give a shit, and it’s that simple.

    2. Zeb, my cousin’s friend’s first roommate in college smoked three refers and died. What do you have to say to that, smarty pants?

      1. Pre-existing condition. Probably saved him/her years of pain and suffering.

        1. Good answer.

      2. what did they refer to?

  3. The main reason to doubt it is that it would reduce the power, scope, and budget of the DEA, so it will never happen without it being forced on them. This isn’t complicated.

    1. I suspect that legal pot would reduce the drug problem by 80%, making DEA worthless.

    2. or…it would free them up to work better/more profitable cases. weed cases are amateur.

  4. My theory: the DEA knows that marijuana can cure cancer, and they are working in conjunction with the pharmaceutical companies to keep marijuana illegal so that the drug companies can continue to profit off of cancer.

    1. Your ideas are intriguing to me and I wish to subscribe to your newsletter.

      1. Sarcasm? Don’t be afraid of the truth, Hugh.

        1. Do you think the DEA might be involved in the Kennedy assassination in some way?

          1. kennEDy Assassination

          2. Do you think the DEA might be involved in the Kennedy assassination in some way?

            No, that is stupid. The CIA, working in conjunction with the mafia, killed Kennedy for not invading Cuba.

            1. How were the reverse vampires involved?

          3. He was a junkie, Hugh.

          4. Which Kennedy assassination?

    2. I’d like to believe this, but it’s not complicated and elaborate enough for me to *really* believe it. Can you throw in the Illuminati or The Space Pope or Agent Mulder or something?

      1. The Bilderbergs control the DEA, the Illuminati controls Big Pharma. It’s like you don’t even read.


        1. Where’s Pirate Truther when you need him?

          1. Getting the ol’ peg leg polished

            1. Sounds euphemistic, probably isn’t.

              1. You people need to get your heads out of the gutters. How’s that for abstract?

                1. You won’t like where we put our heads if they aren’t in the gutters.


      1. Who do you think run the drug companies?

        1. Master Blaster?

    4. Wow, I no shit had someone tell me this almost verbatim when I asked him to expand on why weed legalization would never happen. It was FB, of course, but still.

  5. I can see one reason to be optimistic:

    As a legacy move by Obama. I don’t know how deep inside his own bubble he is, but I hope he realizes that at the moment, he has very little to point to as a positive legacy. This could be attractive to him as a way to burnish his proggy cred and his legacy.

    1. he has very little to point to as a positive legacy.

      What are you talking about? He brought health care to the masses! Before him, no one had health care at all!

      1. And there’s the historic deal with Iran! I mean, it was historic. How is that not legacy worthy?

        1. Oh, and the climate summit! He stopped global climate change by sending Kerry to France!

          1. He did new things with beer and songlists, in interesting ways! My life has never been the same!

    2. He brought healthcare insurance to millions of uninsured people, including some people he wasn’t responsible for uninsuring in the first place. Expensive insurance fewer and fewer doctors want to accept. How’s that for a legacy?

      1. Do you even remember 2008, CS? People were just dying in the streets from lack of healthcare. I couldn’t even get from my apartment to the bus stop without having to step over the corpses of people who just dropped dead, right there, because there was no healthcare.

      2. He brought healthcare insurance to millions of uninsured people,

        As near as I can tell, he expanded Medicaid. Growth in private sector insurance, as near as I can tell, has maybe paced population growth. And much of that was outside the exchanges, so its safe to say it would have happened anyway.

        But, I think it comes down to how deep in his own bubble he is. I hate to bet that he actually doesn’t believe his own PR, but I think desperate lunging for a legacy is the only way he brings out the ol’ pan and phone to do this.

        1. the ol’ pan and phone to do this.

          Like that “this is your brain on drugs” commercial? Seems about right. Wreck the place up and call it improvement.

    3. He also ended the war in Iraq and then nothing else happened.

      1. He also killed Bin Laden with his bare hands.

        1. I thought he just showed Bin Laden his abs and his head exploded from the sheer awesomeness.

        2. And closed Gitmo.

    4. he has very little to point to as a positive legacy

      Are you fucking delusional?!? 😉

      He doesn’t need to point to anything concrete. People still point to FDR as saving us from the Great Depression, even though it started before he got into office and only ended when the Republicans took Congress during the Truman administration.

      A similar mass delusion is already taking place with Obama.

      1. Wow, gays had no rights before Obama.

        1. Yeah, back in 2008, you could just shoot a homosexual for no reason, and not suffer any legal repercussions. Known gays were branded on their faces or imprisoned.

          All praise be to Obama and his evolution for ending those dark days!

          1. Known gays were branded on their faces or imprisoned.

            This would explain the stupid beard trend.

          2. Indeed, life was so bad for gays in 2008 that even the Democrat nominee for President declared that marriage should and will always be between a man and a woman.

            Hey wait a minute …

      2. Yes. Obama doesn’t need to do shit; his apologists and psychotic TEAM supporters will do all the work for him. In fact, at this point, why would he do anything controversial? He doesn’t need the grief. He’ll be on the gravy train soon.

        1. I mentioned in the AM Links that I think there’s a chance he’ll do this on his way out the door. That way he gets all the accolades, even though he spent seven years locking people up for a victimless act, but doesn’t have to deal with any of the practical or political consequences of his actions.

          1. I doubt it, he’s going to save every little bit of juice he has left for pardons and cronies and setting himself up for life after leaving office. He would never waste that power on something that didn’t actually directly benefit him.

            1. He would never waste that power on something that didn’t actually directly benefit him.

              He would be the guy who legalized marijuana. That is a lot of street cred for person who seems to yearn for adoration.

              1. It boils down to this, IMO. Will his narcissism lead him to do the Right Thing?

    5. And Cuba. I mean before the Lightbringer nobody could trade with Cuba. Except for every company that wasn’t based in the U.S. But now that we’ve brought free trade to a country that explicitly outlaws free trade, expect a million points of light or something.

    6. ObamaCare and the Iran deal are his legacy. Oh wait…

  6. How many presidential candidates have called for the abolition of the DEA? Call me when someone like that shows up.

    1. Perhaps it was Rick Perry’s third alphabet agency.

    2. They care about the childrens, so none of them.

  7. The President can interpret health care and tax laws anyway he wants, he can write gun laws with executive orders, and he can find the power to kill American citizens without a trial; but somehow he can’t reclassify marijuana without Congressional approval?

    1. Here’s Obama’s calculus:

      Does this action increase government power? If yes, then do it, no matter the legality. If no, then don’t do it.

      1. You forgot one:
        If I don’t do this, can I fool most of the populace into blaming the GOP for it?

        If he reschedules pot, then the Democrats won’t be able to con people into thinking the GOP is preventing legalization.

        1. Also: Is it an election year?

          I honestly don’t find it surprising that Obama would do nothing on this subject before November 9th.

      2. Before the end of this we’re going to see a new bureaucracy devoted to taxing and regulating marijuana, a registry for users, mandatory treatment and substance abuse classes, and probably a prohibition on home cultivation to ensure revenue.

        1. just look at the number of alcohol-related laws across the country and you can see the model it will follow.

  8. “What is and isn’t a Schedule I narcotic is a job for Congress,” President Obama told CNN’s Jake Tapper in 2014.

    This was telling. Obama only fails to usurp congressional authority when it’s something he doesn’t really want to have done.

      1. If Reason had a REAL COMMENTING SYSTEM then I would +1 Fist’s post instead of replying inanely to yours.

    1. And didn’t congress give the executive branch explicit authority to reclassify things in the CSA?

      1. Yes, the AG can reschedule it based upon the recommendations of HHS.

  9. The president’s response was, ‘If you feel so strongly about it, and you believe there is so much public support for what it is that you’re advocating, then why don’t you pass legislation about it, and we’ll see what happens.'”

    And this from a guy that routinely bypasses congress and writes law-via-regulation every month. Gotta love it.

  10. R C Dean|4.7.16 @ 11:27AM| block | mute | #

    I can see one reason to be optimistic:

    I will counter this with deep, deep cynicism =

    The main beneficiaries of weed remaining illegal are police departments. Police would see a unilateral Obama move to reschedule as a ‘Democrat betrayal’ of the Law and Order vote. Particularly in large urban areas where weed is the #1 excuse to bust people that are also likely to be committing 2 or 3 other crimes – its an ‘enabler’ for cops. They’d revolt en masse and punish the party for crossing the line.

    I think it also extends to large swaths of Soccer Moms. While the #s suggest that weed-legalization has widespread support, the opposition has tendrils in areas where democrats fear to offend.

    anyway, that’s a theory.

    1. Police depts. don’t benefit from pot’s federal control status. It could be on federal schedule 5 & local police could do every single thing about it they’d do otherwise. It could be decontrolled completely & they could do everything except possibly share seized assets w the feds; there’s probably some way they could anyway, on the basis of some authority the Justice Dept. might have to seize assets of those violating state or local laws on substances “of abuse” even if they’re not federally scheduled.

  11. OT: Internet hyperlinks do not infringe copyright, EU court advised

    The DEA is still considering the matter, however.

  12. uptil I looked at the bank draft saying $8885 , I didn’t believe that my mother in law woz like they say truly taking home money in there spare time at their laptop. . there great aunt haz done this less than 17 months and as of now repayed the mortgage on there home and bourt a great Renault 4 . see

    Copy This Link inYour Browser

  13. “What is and isn’t a Schedule I narcotic is a job for Congress,” President Obama told CNN’s Jake Tapper in 2014.

    That’s f-ing rich coming from a guy who has no respect for the boundaries of branch power. So much for a progressive hero — the man smoked all through college and yet was happy to let people be find and imprisoned for the same. What a hypocrite.

    It’s not unlikely that he will do an about face after the election and put the order through — his ego will compel him to tie up the administration with a pretty little bow like this. At least that would be one executive order I can get behind.

  14. The CSA is a set of rules and regs that INCLUDE rules and regs for its “lawful” implementation. The federal government has 1 year with a one-time only, 6 month extension (so 18 months total) to prove to “we the people” that whatever substance they put on Schedule meets ALL the requirements of that Schedule….

    Schedule I substances are those that have the following findings:
    1. The drug or other substance has a high potential for abuse.
    2. The drug or other substance has no currently accepted medical use in treatment in the United States.
    3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

    So since 1971–the feds have NEVER “LAWFULLY” placed cannabis on Schedule, let alone Schedule I. The Shafer Commission did the research on cannabis when congress okay-ed cannabis as Schedule I on temporary status–until the feds research was completed. The Shafer Commission concluded cannabis should not be Schedule I or II and could be safely used with a doctor’s recommendation. Nixon shredded the ‘research’ and waged ‘war’ anyways. For the last 45 years the feds have never fulfilled the “lawful” procedure required by the CSA to place cannabis on Schedule (anywhere).

    And as long as aspirin kills over 3,000 people a year and is not on Schedule, science sanity and humanity require cannabis be exempt from Schedule. After all, the longest war in the history of the US is based on lies, prejudice and greed….

  15. how bout just vote for gary johnson or bernie sanders? save us a lot of headaches getting it re-classified.

    1. I don’t trust Sanders to not tax cannabis at 90%.

  16. Declassification is what is really needed. Reclassification will still prohibit non-medical use cannabis.

  17. 1 – the DEA is our mommy
    2 – the DEA is a communist front
    3 – the DEA makes too much money from prohibition

  18. The DEA and the monstrous “war on drugs” (ie – marijuana consumers) are both fevered nightmares of paranoid, schizophrenic, ex-president Richard Nixon. They were both a blatant move to attack minorities and the counter-culture. – That they still exist today is a testament to the Orwellian police state they created and so stubbornly persists.

    This country can never reach the enlightenment of many progressives countries until we eliminate both of these abominations.

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