On Friday,
testifying before a subcommitttee of the House Appropriations
Committee, Attorney General Eric Holder said he would be “be more
than glad to…work with Congress if there is a desire to look at
and re-examine how [marijuana] is scheduled.” PolicyMic‘s
Matt Essert
calls Holder’s comment, which was first
noted by Ryan Reilly at The Huffington Post, “one
big step towards marijuana legalization.” I’m not sure it’s a step
at all, since Holder, who has the power to reclassify marijuana
administratively, essentially said the ball is in Congress’ court.
Furthermore, if you look at the context of his statement, you can
see he mainly was trying to deflect criticism of the Justice
Department’s response to marijuana legalization in Colorado and
Washington.
Holder was responding to a question from Rep. Mario Diaz-Balart
(R-Fla.), who argued that focusing Justice Department resources in
those states on marijuana cases that implicate “federal enforcement
priorities” amounts to treating cannabis differently from other
drugs on Schedule I. That category is supposedly 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. If the Obama administration thinks
marijuana does not belong on Schedule I, Diaz-Balart asked,
“wouldn’t it make sense to come to Congress with some
recommendations, some changes…if nothing else, to give certainty
and consistency, and the American people would understand that the
law is applied with certainty and consistency?”
Holder rejected “the notion that we are selectively enforcing
the law,” saying the Justice Department is exercising appropriate
prosecutorial discretion. “If you look at the kinds of marijuana
cases that we will bring, or that we are bringing, and what was
brought by the Justice Department previously,” he said, “I’m not
sure that you’re going to see a huge difference.” As for moving
marijuana out of Schedule I, Holder said, “there is a great deal of
expertise that exists in Congress,” and “that is something that
ultimately Congress would have to change.” He added that “the
administration would be glad to work with Congress if such a
proposal were made.” That answer did not satisfy Diaz-Balert.
“Congress can do what it may,” he said, “but Congress is not the
one who has decided to allow or to not go after folks in a couple
of states who are…selling marijuana.”
Diaz-Balert’s line of questioning reflected the frequently heard
Republican
complaint that President Obama ignores the law when it proves
to be inconvenient. There is considerable merit to this charge. But
Republican presidents have been equally guilty of abusing executive
power, and it’s not true that the Obama administration’s policy
regarding state-licensed marijuana businesses violates federal law.
The Justice Department has never prosecuted every violation of the
Controlled Substances Act (CSA), and its priorities in Colorado and
Washington are squarely within the executive branch’s
discretion.
You know what else is within the executive branch’s discretion?
Marijuana’s classification under the CSA. Because of the CSA’s
reference to international treaty obligations, it is
doubtful that Holder has the authority to remove marijuana from
the schedules entirely. If that is what Diaz-Balert had in mind,
Holder was correct to say “that is something that ultimately
Congress would have to change.” But the CSA does give the executive
branch the authority to move marijuana to a less restrictive
category. Such rescheduling would not be tantamount to
legalization—even for medical use, since the Food and Drug
Administration still would have to approve any cannabis-based
medicine. But it could have
various benefits, such as loosening up some of the restrictions
on research, freeing federal agencies to speak more candidly about
marijuana, and allowing state-licensed marijuana suppliers to
deduct their business expenses. Perhaps most important,
rescheduling marijuana would advance a more honest discussion of
drug policy by acknowledging the arbitrariness of the
pharmacological distinctions drawn by our government.
Still, rescheduling, whether done by the administration or by
Congress, would not accomplish nearly as much as, say,
the Respect State
Marijuana Laws Act, which would lift the federal
ban on marijuana in the 20 states that have legalized it for
medical or recreational use. I think the Drug Policy Alliance’s
response to Holder’s testimony reflects about the right level
of enthusiasm:
Re-categorizing marijuana would not legalize the drug under
federal law, but it could ease restrictions on research into
marijuana’s medical benefits and allow marijuana businesses to take
tax deductions.“Rescheduling would be a modest step in the right direction, but
would do nothing to stop marijuana arrests or prohibition-related
violence,” said Bill Piper, director of national affairs for the
Drug Policy Alliance. “Now that the majority of the American public
supports taxing and regulating marijuana, this debate about
re-scheduling is a bit antiquated and not a real solution to the
failures of marijuana prohibition.”
The debate about rescheduling is illuminating to the extent that
it focuses attention on how little sense the CSA’s categories make.
While marijuana surely does not meet the criteria for Schedule I,
it’s not clear that it meets the criteria for any other schedule
either. A lot depends on how you define “currently accepted medical
use.” Putting marijuana aside, what should be done with a drug that
has a low or medium potential for abuse (and therefore does not
qualify for Schedule I) but is not a recognized medicine? There is
no schedule for such drugs, which in practice end up either on
Schedule I (where LSD is located) or on no schedule at all
(currently the status of Salvia
divinorum). Meanwhile, the CSA explicitly exempts from
scheduling alcohol and tobacco, two widely consumed psychoactive
substances with relatively high potentials for abuse and no
accepted medical use. If Diaz-Balert is looking for “consistency,”
he will not find it in the CSA.
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