It Seems Highly Doubtful That a President Sanders Could Unilaterally Legalize Marijuana

While the Controlled Substances Act generally gives the attorney general the authority to deschedule drugs, it also invokes treaty obligations that seem to preclude doing that with cannabis.


Democratic presidential contender Bernie Sanders recently unveiled a plan to legalize marijuana within the first 100 days of his presidency by removing it from the schedules of the Controlled Substances Act through administrative action. But because of the way that law interacts with international treaty obligations, it's not clear the Vermont senator could legally do that as president.

Since Congress passed the Controlled Substances Act (CSA) in 1970, marijuana has been listed in Schedule I, the most restrictive category. Schedule I is officially reserved for drugs with a "high potential for abuse" that have "no currently accepted medical use" and are so dangerous that they cannot be used safely, even under medical supervision.

It is highly debatable, to say the least, that marijuana meets any of those criteria, let alone all three. But over the years, most recently in 2016, the Drug Enforcement Administration (DEA), the Justice Department agency to which the attorney general has delegated his rescheduling authority, has repeatedly rejected petitions asking it to take marijuana off Schedule I, where it sits alongside heroin and LSD, above supposedly safer drugs such as cocaine, morphine, and methamphetamine.

The fact that the DEA has even considered those petitions, of course, shows that new legislation is not needed to move marijuana from Schedule I to a less restrictive category. But Sanders wants to go further than that. If elected president, he says, he would issue "an executive order that directs the Attorney General to declassify marijuana as a controlled substance." While the CSA does give the executive branch the authority to reclassify marijuana, completely declassifying it is another matter.

"I think it is very unlikely that the attorney general could remove marijuana from the schedules entirely," Alex Kreit, a drug policy expert at Thomas Jefferson School of Law in San Diego, told me when the issue came up during the Obama administration. Although the CSA gives the attorney general the power to "remove a drug or other substance entirely from the schedules," it also says that "if control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate."

Since the 1961 Single Convention on Narcotic Drugs requires its signatories (which include the United States) to criminalize production, possession, and distribution of cannabis for nonmedical purposes, this reference to treaty obligations seems to bar the attorney general from descheduling, as opposed to rescheduling, marijuana. Cannabis "requires a lot of control" under the Single Convention, noted Eric Sterling, executive director of the Criminal Justice Policy Foundation, who helped write federal drug legislation in the 1980s as counsel to the House Judiciary Committee. "Cannabis is supposed to be controlled like opium and opiates." Then again, Kreit noted, other CSA provisions "seem to contemplate situations where the U.S. does not accept international scheduling determinations."

It is at least highly doubtful that a President Sanders could unilaterally legalize marijuana. I have asked his campaign to address this issue and will update this post if and when I receive a response.

NEXT: Buttigieg and Sanders Clash Over the Supreme Court

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  1. ” he says, he would issue “an executive order that directs the Attorney General to declassify marijuana as a controlled substance.”

    And replace it with guns maybe ?

  2. So, President Bernie denounces the treaty and then directs his AG to remove MJ from the schedules.

    1. Oh sure. Imagine the commotion if a president denounced a treaty.

      1. The treaty itself provides for its own denunciation. Even tiny Bolivia denounced it so as to allow coca-leaf chewing.

        1. Then the Bolivians re-ratified the treaty, this time with a reservation that native peoples could chew coca leaves. So if the drug warriors pressure the Pres to get back into the treaty regime, he could do so with Senate approval and with reservations in favor of dope or whatever.

      2. As opposed to an not ratified (not even submitted for ratification) ‘agreement?’

        Yeah, it could be a problem, but realistically the only remedy would be impeachment.

        Assuming a President Bernie to begin with, do you really think anyone would try to impeach over that action?

  3. It’s not clear to me how de-scheduling via executive action would violate the Single Convention any more than a legislative approach would. The Convention simply requires prohibition, it doesn’t say anything about how that prohibition is enacted or modified internally.

    Also it’s kind of beside the point, given that places like Canada and Uruguay have repealed cannabis prohibition in direct violation of the Single Convention and haven’t been sanctioned for it. If it’s not enforced, how much of an “obligation” is it, really?

    1. The US law requires conformity to the treaty, not the other way round. Repealing that section of the law is an ordinary legislative action.

      I believe the Supreme Court has ruled several times that treaties cannot override US law; but as the law shows, it is possible for US law to require following a treaty.

      1. “I believe the Supreme Court has ruled several times that treaties cannot override US law”

        More the opposite, the Supremacy Clause makes that clear.

  4. While the Controlled Substances Act generally gives the attorney general the authority to deschedule drugs

    The Controlled Substances Act is an unconstitutional abomination.

    Even the Prohibitionists knew that they needed a Constitutional Amendment to ban alcohol products in the USA. Constitutional interstate Regulation power is not prohibition power.

  5. Meh, Bernie Sanders will never be President now.

    He has a bad ticker. You might as well vote for his VP choice.

  6. Not to defend Bernie or anything, but I do think he could. If the drug treaties don’t hinder the states in legalizing pot, then they don’t hinder the feds. Might have to take steps to prevent drug tourism, but that’s minor.

    But it does bring up the point that a president doing this would indeed have to go before Congress and ask for a bill repealing the controlled substances act, and start negotiations to loosen and remove international drug treaties (treaties which prior presidents initiated).

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  8. He could also direct the change of priority for use of resources from the horrible nasty marijuana to say, crimes of violence. So not ‘really’ DE-classify it, just classify it as not worthy of a dime’s worth of federal tax money.

    1. Selective enforcement of laws is worse than suffering under bad laws.

      1. No, it’s not. Suffering is suffering. I’d rather somebody, anybody, not suffer than that everybody do.

        1. Yeah, I already knew you were big on the arbitrary rule of men and do not grok the principles involved.

  9. So it could be schedule 5. That means pharmacists could sell it to adults without a prescription, and you’d sign for purchases.

    The pharmacist’s not supposed to dispense it if s/he thinks it’s not for medical use, but how they gonna know? Typically monthly limits are put on purchases in schedule 5, but the law doesn’t require that every substance in schedule 5 have such limits.

    The sticking point may be that if it’s for medical use, then FDA or the state pharmacy board has to license it as a drug; but that hasn’t seemed to have come into play at all for medical marijuana in states that have it.

    However, the US attorney general can make exemptions for specific preparations of controlled substances that are deemed to have reduced potential for abuse; these may be off the schedules entirely. So any marketer of marijuana can apply for and receive such an exemption for their own brand; still subject to notice-and-comment rulemaking, though. Or the attorney general could make a blanket exemption (same rules) for any marijuana preparation fitting a certain description, such as being packed in a plastic bag or labeled in a certain way.

  10. the 1961 Single Convention on Narcotic Drugs requires its signatories (which include the United States) to criminalize production, possession, and distribution of cannabis for nonmedical purposes

    Uh, huh. Or else what?

    1. Or else the United Nations will say critical stuff about the U. S. You wouldn’t *that* to happen, would you?

    2. This. Fuck the treaty.

  11. It’s a matter of national security. Boom. Done.

  12. ooooh the Single Convention lol

  13. From the drug treaty (linked in the article)

    Article 46


    1. …any Party may…denounce this Convention by an instrument in writing deposited with the Secretary-General.

    2. The denunciation, if received by the Secretary-General on or before the first day of July in any year, shall take effect on the first day of January in the succeeding year, and, if received after the first day of July, shall take effect as if it had been received on or before the first day of July in the succeeding year.

    1. It is absolutely true that Bernie could denounce the Convention, but that still wouldn’t make an executive order of descheduling legal.

      Why? Because the law says (emphasis added) “if control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate.”

      So no change to the status of an international convention after October 27, 1970 has any effect on what the statute requires. Amend the convention, denounce it, it still doesn’t change what was in force on that date, and accordingly the law requires that it be scheduled.

      1. I don’t know what the courts would do, but it would seem silly for a statute to hold the U. S. to a repudiated treaty – literally of course it says the AG “shall” issue a scheduling order, which presumably has already been done. The best way the courts can resolve this without making a silly result (binding the country to a treaty which is inoperative) would be to say that this clause makes sure that the AG can’t invoke *post*-1970 treaties.

        I don’t know if that theory will work, but if it did it would be less silly than plenty of other statutory interpretations they’ve pulled.

        1. Plus once denunciation takes effect, then no matter when the treaty took effect, it will no longer require or obligate the U. S. to do anything.

          1. The treaty’s current status is completely irrelevant to the statute. The statute doesn’t bind the US to the treaty, and the treaty (as a mater of domestic law) doesn’t stop descheduling of the drugs. The statute tells the AG what substances must be scheduled, and thus the AG must schedule those substances.

            How the statute names those substances is by reference, but that’s immaterial; the statute requires the scheduling of a specific list of substances. Congress listed them by reference rather than individually by name; the list being all the drugs that were covered by treaties to which the US was party on October 27, 1970. No matter what happens to any of those treaties, the statute Congress passed still requires every drug that meets those criteria (covered by those treaties on that date) be scheduled. A denunciation of the treaty is as entirely irrelevant to the meaning of the statute as it would have been had the statute instead had, rather than using a reference, directly named “marijuana”.

        2. No, the best way is as I’ve outlined above, wherein the attorney general determines that marijuana in a plastic bag (as opposed to marijuana generally) is an exempt preparation based on its packaging’s having reduced its potential for abuse to negligible. The statute’s invocation of the treaty provision on that date (which is nothing more than a standard incorporation by reference) obligates the US only to control marijuana as a substance, not all preparations of it, and any consideration, such as packaging, can define a “preparation”.

          Incorporation by reference usually doesn’t take in future changes to the document that’s referenced, because then it would be illegal delegation of lawmaking to some other body. So if the Controlled Substances Act said, “as now or as amended”, that would be unconstitutional. As of 1970 at least the content is fixed, and it’s just as if Congress had simply copied verbatim.

          1. Oh, please, there’s always play in the joints (no pun intended) – and the constitutional difficulty would arise in trying to enforce an inoperative treaty, not in refusing enforcement.

            Once the risible “interstate commerce” justification is discarded, then the treaty is all that’s left as a constitutional justification for the narcotics laws. If there’s no longer a treaty to enforce, then what basis (except a bloated Commerce Clause) would Congress have for having a valid law in the first place?

  14. Marijuana criminalization is a national security threat!!!!

  15. From 2013:

    “Major victory for President Morales: UN accepts “coca leaf chewing” in Bolivia

    “Bolivia will again belong to the 1961 Single Convention on Narcotic Drugs after its bid to rejoin with a reservation that it does not accept the treaty’s requirement that “coca leaf chewing must be banned” was successful Friday. Opponents needed one-third of the 184 signatory countries to object, but fell far, far short despite objections by the US and the International Narcotics Control Board.”

    1. Note that if the UN had denied approval, Bolivia would have remained free of the Convention and free to keep coca leaves legal.

      1. So it’s heads Bolivia wins, tails the UN loses.

  16. Oh, yeah. A Democrat can do anything by decree.

  17. I’d be happy if Grandpa Gulag would work to legalize freedom.

  18. Stop federal enforcement. Stop WOD money to states and cities. Rubber stamp clemancy to anyone convicted past, present, future of a drug crime. Who’s going to stop him? Congress will bitch and moan but they don’t do anything except steal our money.

  19. There is no will to prosecute people who just want to have a J on the back porch at the end of the day. A unilateral action from the president to stop prosecuting would absolutely be a de-facto end to prosecution and help set up congress to pass a federal decriminalization of small amounts of marijuana. IRS could prosecute for people dealing large amounts for tax evasion. There I fixed your weed problem. It really be off the federal books though.

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