Who could actually make weed legal in the US?
February 19, 2011 1:34 PM   Subscribe

How exactly would marijuana be decriminalized in the US? Who would effect its removal from Schedule 1? Is that something Obama could do?

Eventually, it's assumed that all the MedicalMJ activity at the state level will force this change. But who has the authority to do it? Could somebody in the FDA authorize the schedule update?
Another aspect: I remember long ago reading that cannabis would/could never be made legal because of certain narcotics-related treaties the US has signed with other countries.
posted by Rash to Law & Government (16 answers total) 2 users marked this as a favorite
You're asking about two things — legalization and decriminalization. I think legalization would involve un-scheduling. Decriminalization though, is different. States like Oregon already have decriminalized pot. That just meant it's not a criminal act, not a misdemeanor or a felony. But it's still possession of a controlled substance and you get a ticket for the "violation", like a traffic ticket.

I don't think Obama could legalize it. I think the legislature would have to.
posted by floam at 1:39 PM on February 19, 2011

The question is specifically about legalization -- who has the power to modify the schedules? And are the constraints via international agreements real, and if so, what actions are required to change them?
posted by Rash at 1:50 PM on February 19, 2011

Do you want to see it legal for anyone anywhere anyhow or legal for doctors to prescribe to patients out of medical necessity and only available through proper pharmacies?
posted by Brian Puccio at 1:51 PM on February 19, 2011 [1 favorite]

Agreed- the legislature would have to, if only because they are the ones who scheduled it in the first place. It's an odd situation- most drugs on the various schedules are there because the FDA decided they should be there. Which is administrative law: Congress says "we give you guys the authority to figure it out." But I *think* they also passed law(s) that say "drugs X, Y and Z need to be on schedule 1." Which means congress would have to undo that law, or the courts would have to find some way to undermine it.

Note: it has *sort of* been decriminalized in a lot of places. My municipality will write $50 infraction tickets if they find a bong on a kid. Even if they know goddamn well what its used for, and the kid probably has a tiny little hershey's kiss tinfoil full of it in their pocket. As long there isn't obvious bags of weed around. Because it is an easy $50 for the municipality. They get jack squat if they write a misdemeanor ticket.

Catch the kid with booze, though, and it is a $250 ticket. Makes no sense to me.
posted by gjc at 1:51 PM on February 19, 2011

It's certainly something a legislature could do. But given the current trend for cigarette-smoking bans *everywhere,* do you think it's likely that lawmakers are going to turn around and legalize pot smoking?
posted by philokalia at 1:57 PM on February 19, 2011

Philokalia, almost 25% od Americans smoke tobacco, and the statistics has been holding strong for some 10 years. That point isn't particularly relevant.

What would need to be done for rescheduling would be legislative initiative which will slowly become more and more relevant as more states pick up medical statuses. Practically every year Barney Frank with others have a bill in the house to reschedule/legalize marijuana.

It isn't going anywhere but one cannot forget how much money is made by keeping it illegal just as legalizing would be making money. Instead of law enforcement, prisons and court ordered rehab companies making cash off of the criminalization of cannabis, people would be doing Califronia sized and larger scale business dedicated to growing, selling, making other products (edibles) and grow equipment.
posted by handbanana at 2:14 PM on February 19, 2011

The Controlled Substances Act is the governing legislation. The DEA administers the Act, including scheduling controlled substances.

So, Congress can do it (as Congress can do anything it wants, assuming it gets the President to sign off on the legislation or gets a veto-proof majority). The DEA can also (I think) reschedule a drug, but it would have to go through certain procedures before getting there - Obama can't just say "let it be so" and have that instantly be done.

A change in consensus that cannabis actually has legitimate medical uses should lead to taking it out of Schedule I, and presumably putting it in Schedule II or III; this would have to be done through the normal DEA administrative process, absent some kind of new legislation.

And yes, there are international treaties the U.S. is subject to in this area... which will remain the case until we decide we're not. Treaties are equal to federal statutes in terms of the weight of legal authority.
posted by J. Wilson at 2:14 PM on February 19, 2011

Marijuana possession is prohibited in federal law and in state laws (with exemptions for medical use in some states). To fully end marijuana prohibition, all federal and state laws making marijuana possession criminal conduct would have to be overturned. Cultivation and sales are also not legal now (except as covered under medical access laws in relevant states). Marijuana laws vary widely at the state level, with some states having decriminalized it already, and others continuing to enforce significant penalties. That makes it easier (in theory) in some states than in others to advocate for elimination of mj possession from the criminal code.

There are a number of proposals for replacing the current criminal status with some sort of taxation and regulation, either more or less like alcohol is regulated. Transform's Blueprint for Regulation is one proposal for a regulatory framework.

The international treaties exist, yes, but the US is so much of the force behind them, that were we to drop out of them, they wouldn't have much meaning at all. And the UN's own rapporteur is telling the UN to change its approach.
posted by gingerbeer at 2:48 PM on February 19, 2011

It isn't something that the states alone can do. See "Gonzales v. Raich".
posted by Chocolate Pickle at 4:24 PM on February 19, 2011

Is that something Obama could do?

When asked about it two years ago, Obama laughed and said (paraphrase): "That's not gonna happen."
posted by ovvl at 4:47 PM on February 19, 2011

I think what you are looking for is legal proceedings that change the schedule category of the drug.

To see something that happened in the past, check out how MDMA became a schedule I drug despite experts, judges, etc ad nauseaum advocating for Schedule III status.
posted by hal_c_on at 5:34 PM on February 19, 2011

NORML seems to have their own Keith Stroup (scroll down) talking about "scheduling". Browse the site, they probably have the answer to your questions.
posted by 6:1 at 5:43 PM on February 19, 2011

All three branches, at both the federal and state level, play a role.

Congress, the legislative branch, creates the law. They passed the law saying it was illegal. Only they could pass a law making it legal.

The President however has a lot of power. The executive branch enforces the law. The President can not change the law, but he can decide resource allocation in enforcing it. The President decides if the DEA will focus on marijuana or heroine. How much drug enforcement should FBI, CIA, NSA and others do? The President can declare a war on drugs, and make that his top priority. Or he could be less aggressive on drugs. The President can not technically legalize marijuana - but he could do it in a de facto sense, by really slowing enforcement of marijuana laws.

The Supreme Court also has a big role. The Judicial branch reviews the validity of laws. For example, they could declare mandatory sentencing laws unconstitutional. They could even declare that the right to use marijuana is guaranteed in the constitution. A supreme court decision saying that Americans have a constitutional right to smoke pot seems very unlikely (especially given the current court) - but theoriatically, such a decision could happen, and legalize marijuana that way.
posted by Flood at 7:17 PM on February 19, 2011

To clarify -- changing the schedule and legalizing are two different things. Many drugs are scheduled but are fully legal to prescribe, possess, and consume within a (medical) regulatory framework. Marijuana could be legalized (or decriminalized) at the federal level, and not moved from Schedule I. Or re-scheduled with no effect on criminal penalties. The two are related, but are not the same thing.

Scheduling is of more importance to the medical cannabis issue, as there's a pretty obvious contradiction between "has no medical value" and "has medical value."
posted by gingerbeer at 8:31 PM on February 19, 2011

gingerbeer: Marijuana could be legalized (or decriminalized) at the federal level, and not moved from Schedule I

posted by daksya at 10:30 PM on February 19, 2011

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