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

Mark 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.