The DEA Can't Legalize Medical Marijuana

An imminent rescheduling decision is bound to disappoint anyone hoping for pot by prescription.


Rumor has it that the Drug Enforcement Administration (DEA) plans to legalize marijuana any day now. Rumor also has it that Barack Obama is secretly a foreign-born Muslim and that the CIA had a hand in the attack that brought down the World Trade Center. Unfortunately, that first claim is about as likely to be true as the other two.

It is true that the DEA has not responded yet to a pair of petitions asking it to reclassify marijuana, which since 1970 has sat in Schedule I of the Controlled Substances Act (CSA), the law's most restrictive category. Schedule I supposedly is reserved for drugs with "a high potential for abuse" and "no currently accepted medical use," drugs that 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, which has wide discretion to interpret and apply the CSA criteria, has always insisted that marijuana must stay in Schedule I until its medical utility is proven by the sort of large, expensive, randomized clinical trials the Food and Drug Administration (FDA) demands before approving a new pharmaceutical.

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), and are under way with Sativex, an oral cannabis extract spray, they have not been conducted with the whole plant. The DEA's definition of "currently accepted medical use" creates something of a Catch-22, since marijuana's Schedule I status, together with the government's monopoly on the supply of cannabis for medical studies, makes conducting such research difficult. But there is little reason to think the DEA, having rejected three other rescheduling petitions, will change its mind now.

Even if the DEA did decide to remove marijuana from Schedule I, the result would not be, as the Santa Monica Observer reported on June 18, "legalizing medicinal cannabis in all 50 states with a doctor's prescription." Staff writer Stan Greene's article was based entirely on the claims of an unnamed "DEA lawyer" who said the agency intends to move marijuana from Schedule I to Schedule II on August 1, which he said "will have the effect of making THC products legal with a prescription in all 50 states." A lawyer familiar with the CSA—let alone one employed by the DEA—would know that is not how the law works, because any cannabis-derived medicine would have to be approved by the FDA (based on the same kind of evidence the DEA has always demanded in response to rescheduling petitions) before a doctor could legally prescribe it.

Moving marijuana to a lower schedule would make research easier, especially if it were combined with competition in the provision of cannabis to researchers. A move to Schedule III or lower would make it possible for state-licensed marijuana suppliers to deduct their business expenses, thereby solving one of the newly legal industry's major financial problems. Even a move to Schedule II would eliminate criminal penalties for marijuana ads and make publications that carry them officially "mailable." At least as significant as the immediate practical effect, the federal government's implicit recognition of marijuana's medical value could have an important impact on the public policy debate at the national and state level.

But rescheduling would not by itself make marijuana legally available as a medicine. Even in the 25 states that let people use marijuana for symptom relief, patients and their suppliers would still be breaking federal law.

In short, the Observer article was based on a verifiably false claim about the consequences of reclassifying marijuana, casting doubt on its source's legal expertise as well as his knowledge of the DEA's plans. The story was nevertheless echoed by various blogs and news outlets, including The Daily Caller, which credulously reported that "the U.S. Drug Enforcement Administration is on the cusp of legalizing marijuana use across the country," citing "a lawyer acting as counsel to the agency"—i.e., the same "DEA lawyer" quoted in the Observer piece. Daily Caller reporter Christian Datoc does not seem to have independently interviewed that source, instead relying on the earlier article. The Daily Caller report appeared the day after The Daily Chronic's Scott Gacek dismissed the Observer story as "speculation and rumor" based on a single unidentified source and warned that "the cannabis community should not be duped by this misinformation."

The Santa Monica Observer and The Daily Caller are not the only news outlets promoting unrealistic expectations about the consequences of the DEA's decision regarding marijuana. The day before the Observer's supposed scoop, Inc. staff writer Will Yakowicz claimed "the plant could be de-scheduled completely like alcohol or tobacco." A June 25 Motley Fool post (which seems to have been taken down) likewise reported that the DEA "could completely deschedule marijuana, putting the plant on par with tobacco and alcohol." But it's pretty clear such a change, unlike moving marijuana from one schedule to another, would require congressional action, because the CSA says scheduling decisions must comport with international drug control treaties, which allow medical use of cannabis but call for strict regulation. The Motley Fool also erroneously reported that "if the [DEA] were to reclassify marijuana as anything other than a schedule 1 substance, then medical marijuana would immediately become legal throughout the U.S."

It seems unlikely that the DEA will take even the relatively modest step of moving marijuana from Schedule I to Schedule II. In a September 30 letter to Rep. Earl Bluemenauer (D-Ore.), the Justice Department (which includes the DEA) mentioned that the DEA had "recently received" a scientific evaluation and a scheduling recommendation from the Department of Health and Human Services, which is part of the process prescribed by the CSA for scheduling decisions. In an April 4 response to questions from members of Congress, the DEA said it "hopes to release its determination in the first half of 2016." But DEA spokesman Rusty Payne recently told Vice News, "We don't have a timeline on the decision."

Presumably it will happen before President Obama leaves office in January. But Obama himself has indicated that his administration will not reclassify marijuana, even implying that it does not have the statutory authority to do so. "What is and isn't a Schedule I narcotic is a job for Congress," 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."

If the DEA nevertheless reschedules marijuana, it will be contradicting all of those signals, not to mention more than four decades of its own intransigence, including its longstanding, court-approved interpretation of the CSA—as well as DEA Acting Administrator Chuck Rosenberg's dismissal of medical marijuana as "a joke." Although a DEA reversal would surprise me, I won't say it's impossible. But it clearly is impossible that the DEA's decision, whatever it is, will suddenly make marijuana a legal medicine throughout the country.

Update: In a follow-up article published on July 4, the Santa Monica Observer's Stan Greene offers a notably different account of what would happen if the DEA moved marijuana from Schedule I to Schedule II. While the original "groundbreaking article" (as Greene modestly describes it) said that change "will have the effect of making THC products legal with a prescription in all 50 states," the new article, which features quotes from a second interview with the unidentified "DEA lawyer," says "moving marijuana to Schedule II is all about allowing people to do clinical research." The lawyer, whom Greene calls "Deep Throat," notes that any cannabis-derived medicine will "have to go through the same trials as anything else," saying "exhaustive scientific studies" will be required to survive "the FDA wringer." In other words, rescheduling marijuana will have no immediate impact on its availability as a medicine. The production, distribution, and consumption of marijuana for medical purposes (or any other purpose) will still be prohibited by federal law, regardless of what state law says.

Deep Throat also casts doubt on whether the change he predicts will actually happen, saying, "There's a reason I'm talking to you today, and it's to float a few trial balloons." Federal officials floating trial balloons usually do not announce that is what they're doing, and they usually do not do it in the Santa Monica Observer. Nor is it clear exactly whose trial balloons these are, since the lawyer "was not authorized to speak to the press." Furthermore, the idea that Deep Throat is floating trial balloons seems inconsistent with his claim that "the decision has already been made."

That's not the only thing about the quotes from the DEA lawyer that rings false. He refers to "TBD oil," by which he presumably means CBD (cannabidiol) oil. That is not the sort of mistake you would expect a lawyer working for the DEA to make, although maybe it was Greene's transcription error.

"I will remind everyone that Congress vested the DEA with authority to enforce the nation's drug laws," says Deep Throat. "Don't even think of challenging our authority. Because ultimately, what you will get to use is only what we will allow." That seems a bit over the top, even for a DEA official, and it's obviously not true, inasmuch as millions of people across the country are already using marijuana for medical purposes. Putting marijuana in Schedule II won't change that, and it won't stop the movement toward full legalization, which renders the DEA's notional control over what people do with this plant even more patently absurd.

This article originally appeared at

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  1. Um… we already have ‘pot by prescription’ in CA. And it’s recreational in CO. Which is exactly how it should work – first the states decriminalize and then the feds follow. Yes it’s a messy process, but it’s far better than edicts and decrees from on high.

    1. And Obama and Holder have been tremendously effective in decriminalization and ratcheting down the drug war. Far more than any other president. So yeah, now it’s Congress’ turn.

      1. Hillary will be even better on the WOD, shreek. Go ahead and tell us about that.

      2. The only thing the President has done, and late in his second term at that, is to commute the sentences of some drug offenders. Not pardon them, mind you. It is quite literally the least he could do, short of nothing. Better than nothing, but about as praiseworthy as the town council deciding to forgive parking tickets issued erroneously.

    2. The fantasy is that moving it to schedule II will force States like Nebraska, Oklahoma, and Idaho to accept it as a prescription medicine. Whoever invebted the fictional DEA lawyer doesn’t have a keen grasp of how the Federal Controlled Substances Act works, or how it interacts with State level Uniform Controlled Substances Acts. Here are a couple of substances on Federal schedule II: Methamphetamine, cocaine including crack cocaine, PCP and raw opium. I’m not certain how the heck PCP hasn’t been moved to schedule I but it doesn’t matter. Even when the drug was commercially manufactured and sold it was never approved for use in human beings. Yes folks, the governments naughty lists include veterinary medicines. I’ll bet it’s listed on most, if not all State level naughty substances lists in schedule I.

      While there are various brand names for methamphetamine, e.g. Desoxyn, you can’t get a prescription for that filled in Oregon, where it resides on Oregon’s schedule I. Oregon also requires a Rx for psuedoephedrine which is in Oregon’s schedule III. There are prescriptions for cocaine filled every day of the week but they aren’t prescriptions for crack. But I do know why crack is in schedule II, it’s pharmacologically identical to cocaine.

      I have no clue to the motivation of the person who generated this fiction but it doesn’t fool anyone with a working knowledge of the Controlled Substances Acts.

      1. OK then the purpose of the fiction is to create the impression that it’s legal so that the feds have a new class of idiots to chase after. Same strategy as getting Russia to bomb Damascus and then we drone the stream of refugees.

  2. Obama is now all the sudden concerned about the legal extent of his authority? Never stopped him before.

    1. This only proves that pot legalization is still considered a political third rail by those inside the Beltway. Obama doesn’t dare “pen-and-phone” this one, neither will Lynch it seems. They suggest only Congress has the power to change the law… yeah, let’s see how far any MJ-legality-altering bill gets with the GOP controlling both the House and Senate. (My prediction: laughed to death in committee.)

      Nobody’s got the cojones to take the ball and run with it, to give legal cannabis at least a brief, shining moment before the next administration sets the movement back anywhere from a few years to half a century (the latter especially if someone with a drug-warboner like Christie ends up as VP or in the Cabinet).

  3. my best friend’s mom makes $74 an hour on the computer . She has been without work for five months but last month her payment was $19746 just working on the computer for a few hours. find more information …

  4. Prohibition of marijuana is a premise built on a tissue of lies. Our new laws save hundreds of lives every year, on our highways alone. In the thirteen states that decriminalized marijuana between 1990 and 2009, traffic fatalities have dropped by nearly nine percent more than the national average, while sales of beer went flat by five percent.

    No one has ever died from an overdose of marijuana. It’s the most benign ‘substance’ in history. Marijuana is a neuroprotectant that actually encourages brain-cell growth. It also has tumor-shrinking, anti-carcinogenic properties, as confirmed by a study at UCLA.

    Marijuana is “cannabis” in Latin, and “kanah bosm” in the old Hebrew scrolls, quite literally the Biblical Tree of Life, used by early Christians to treat everything from skin diseases to deep pain and despair.

    ‘Christian’ politicians, prosecutors, and police who pose on church steps or kneeling in prayer on their campaign trails cannot or will not face the scientific or the historical truths about cannabis, Medicinal Herb Number One, safe and effective for thousands of years, and celebrated as sacraments by most of the world’s major religions.

    RE-legalize the Biblical Tree of Life!!!

    1. Lose the last three paragraphs, copy pasta guy.

    2. ”’Christian’ politicians, prosecutors, and police who pose on church steps or kneeling in prayer on their campaign trails cannot or will not face the scientific or the historical truths about cannabis, Medicinal Herb Number One, safe and effective for thousands of years, and celebrated as sacraments by most of the world’s major religions.”

      And those who do treat cannabis as a gift from God, like David Simpson (a Texas state representative – and a Republican at that) did, face the wrath of the constituents and get primaried out. Still a sad state of affairs in some areas.

  5. I’ll hold out more hope that the DEA will be disbanded, as it should be.

  6. “Prohibition of marijuana is a premise built on a tissue of lies.” Well said Mr. Clark.

    Cannabis has such an interesting history doesn’t it? And it continues to unfold… As I understand it, it ultimately is about the money. There’s many aspects to be considered, but eventually, it’s the money. If everyone in America who enjoys cannabis, discreetly grew 3-4 plants for their personal consumption, would there be such a fuss? Everyone knows the answer.

    But that will never happen. It’s such an amazing plant that helps folks deal with just about everything. It also provides an opportunity to become a criminal by growing in larger quantities to sell to those who don’t want to or can’t grow their own. It pays the bills. And on a larger scale, to the cartels that are interested in making billions.

    Working toward full legalization is the right direction and I will help make that happen. But I am a patient that has learned the helpful attributes of cannabis for me personally. When I have the choice to feel good or live in discomfort, I’ll take the high road regardless of scheduling.

    1. Thanks.

      Most of the proposed legislation being tossed around in Michigan has included some provision for one or two plants per patient, or per household if full legalization occurs.

    2. You people. You can’t just let people have dangerous plants around children. Geez.

      1. Seriously though; you smoke some weed, and then play piano and laugh maniacally, and then try to rape a lady and get shot by some college kid and then get run over by a car. I saw it in the documentary “Reefer Madness”.

      2. Btw Hype, Thanks for posting that bottle of rum this weekend. It got me curious, and I went out and bought a bottle of Santa Teresa 1796. I’ve been drinking it on the rocks, and also with a splash of homemade lemonade and mint. Anyways, I’m looking forward to a summer of rum exploration. Any suggestions would be helpful (excluding $125 bottles).

        1. I drank about half of the bottle, it’s really good. I’m not much of a liquor drinker. I actually never drink bourbon or rum because it gives me a hangover. Even the cheaper PITU Gold is good rum. You can probably find a good caipirinha recipe online. I just let my wife make them, so I’m not sure exactly how that works. It’s just lime and some sugar and pretty much pure alcohol. You can use other fruit, but the original is just lime. The Vitoriosa tastes more like bourbon than rum, even though it’s made from sugarcane. It’s aged in some sort of barrels, which I guess is why it tastes different. Very smooth, easy to drink straight.

  7. drugs that cannot be used safely even under a doctor’s supervision

    25 states *so far* have concluded otherwise.

    25 States that have passe Medical Pot Laws

  8. The product “Sativex” is in fact whole cannabis, albeit a blend of two strains and produced to very high standards in terms of THC/CBD ratio. But it is whole cannabis.

    1. Derek – Sativex is not “whole cannabis”. It is a mouth spray with cannabis extracts in a liquid base. “Whole cannabis” has leaves, stems and flowers.

      1. Hive of Scum (great name btw) – no, “whole cannabis” refers to the whole profile of active ingredients, such as terpenes etc found in cannabis, it does not mean including leaves, stems and flowers etc. Oil or shatter are “whole cannabis” for that reason. Indeed Sativex is cannabis oil made from a blend of a sativa and a ruderalis variety. It specifically is not chemicals extracted from cannabis.

        If the DEA approves Sativex, they have approved whole cannabis, albeit with a specific ratio of THC to CBD

        1. Then what’s whole wheat?

          1. In terms of wheat, the vegetable matter is relevant for dietary reasons. In the case of cannabis it isn’t. Parts of the plant like leaves, stems etc are benign, unreactive. The only relevant constituents are the active chemicals – drugs if you like. Method of ingestion aside, there is no medicinal difference between ingesting a blend of the two plants used in Sativex or the oil of the two plants.

            Sativex is “whole cannabis”

  9. Since the drug war is not authorized by the constitution, the DEA is illegal.

    1. Most of our government is illegal if we go by the Constitution. But they started ignoring it a long time ago, it’s effectively dead.

  10. “So go ahead and start using it, everyone. Get a running start on its rescheduling.” [DEA brass rubbing hands together eagerly]

  11. If the WOD is ever ended, that means that cops will have to come up with something else they can use to harass peaceful citizens for fun and profit. What will it be? Salt wars? “You got anything salty in the car? Crackers, potato chips with high sodium content? You lying to me? Nice car you got there, be a shame if anything happens to it”.

    1. I forsee lots of dogs alerting to tires and undercarriages, particularly in the northeastern part of the country.

    2. The WOD is being ramped up in other areas (Opioid Epidemic!!!!!). And lots of states are starting to really hassle tobacco users. They’ll have plenty of shit to harass you for.

      1. Bureaucracy is fertilized fantastically through alarm. Without alarm government would cease to exist except as a thin apparatus for mundane extremities.

  12. Government walks its citizens on leashes of hope.

    1. They’re doing a terrible job of that. About the only hope left is that the whole thing implodes and we can start over again.

      1. Hope doesn’t concern itself with reality only ideal which makes it a formidable delusion.

  13. “a high potential for abuse”

    AND “an explosive potential for terrorism”.

  14. Has Hillary been cleared of any wrong doings yet?

  15. A few years ago, “Rumor had it” that Obama had personally legalized medical marijuana, which led to a frenzy of activity until the feds, with eager cooperation from state and local law enforcement, conducted a series of high-visibility raids across the state of Montana as the state legislature was debating changes to the MMJ law. Squelched, it was.

    Much asset was confiscate, that day.

  16. Wait, pot is superfood now?

  17. Personally, I would prefer if Congress de-schedules marijuana. Not only is there a legal question of whether the Executive can unilaterally do so since the USA has treaty obligations (which only Congress can override) but I don’t want marijuana to become a political football, subject to the personal whims of whoever is sitting in the Oval Office.

    Yes, passing legislation to make this change will be hard. But it’s the right way to go.

  18. Hi, Jacob Sullum. US President Barack Hussein Obama II’s genetic father is Frank Marshall Davis. For irrefragable physicochemical proof that the 9/11 attacks were an inside job by the US government–i.e., via the use of large quantities of thermite in the case of the collapse of the three destroyed World Trade Center towers–see pp. 75-84 of my following article:

    * James Redford, “The Physics of God and the Quantum Gravity Theory of Everything”, Social Science Research Network (SSRN), Sept. 10, 2012 (orig. pub. Dec. 19, 2011), 186 pp., doi:10.2139/ssrn.1974708, .

    My foregoing article pertains to physicist and mathematician Prof. Frank J. Tipler’s Omega Point cosmology, which has been published and extensively peer-reviewed in leading physics journals. It is a proof (i.e., mathematical theorem) of God’s existence per the known laws of physics (viz., the Second Law of Thermodynamics, General Relativity, and Quantum Mechanics). This article further concerns the Feynman-DeWitt-Weinberg quantum gravity/Standard Model Theory of Everything (TOE), which is also required by said known physical laws; and it addresses the societal implications of the Omega Point cosmology.

  19. Obama Part 1

    ‘But Obama himself has indicated that his administration will not reclassify marijuana, even implying that it does not have the statutory authority to do so. “What is and isn’t a Schedule I narcotic is a job for Congress,” Obama told CNN’s Jake Tapper in 2014. “It’s not something by ourselves that we start changing.”‘
    Obama claims to be a constitutional law scholar. Yet, he apparently isn’t able to distinguish between a “narcotic” and a “controlled substance”. The so-called “Comprehensive Drug Abuse Prevention and Control Act of 1970” (aka The Controlled Substances Act [CSA]) defines “controlled substances” and categorizes them in five (5) schedules. “Narcotics” are opiate drugs which are physically-addicting and which cause narcosis, or sleep.
    What the terminology-challenged Obama said to CNN’s Jake Tapper in 2014 is a falsehood.
    People need to realize that Obama can reschedule cannabis from the wrong, false, immoral, irrational, unjust, and unconstitutional category of schedule I to the category cannabis fits in according to the definitions in the CSA, schedule V.
    With a stroke of his famous “pen”, or a call on his famous “phone”, Obama has the authority under the CSA to reschedule cannabis from schedule I to schedule V, or to deschedule cannabis and remove cannabis from the CSA altogether. No action by Congress is required.

  20. Obama Part 2
    Obama is certainly no liberal or progressive. He remains soft on drugs, having surrendered to the tobacco and alcohol drug lords. Tobacco & alcohol are unconstitutionally exempt from the CSA in violation of the Equal Protection Clause.
    Obama refuses to use his Executive authority to right the immoral wrong of the misclassification of cannabis.
    It’s Obama’s fault that cannabis wrongly and unjustly remains a schedule I controlled substance.
    Why won’t Obama undertake right now the right, moral, rational, and just action of removing cannabis from schedule I?
    Why won’t Obama remove cannabis from the CSA altogether, like tobacco & alcohol?
    Why are tobacco & alcohol exempt by name from the CSA?

    1. Because the enforcement apparatus that exists only because of the CSA is an expression of State power and a useful tool.

  21. The CSA needs to go in the same place as the NFA – up the statists’ asses. I want to smoke weed while shooting my suppressed machine-gun, now.

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