*SEE UPDATE AT BOTTOM*
Jacob Sullum at the libertarian site Reason nails it (UPDATE: No, he didn’t nail it. See the update at the bottom of this post):
Obama at first denied that the executive branch has the power to reschedule drugs, saying “what is and isn’t a Schedule I narcotic is a job for Congress.” As Tapper pointed out, that’s not true. While Congress can amend the Controlled Substances Act (CSA) to increase or reduce restrictions on particular drugs, the statute also gives that power to the attorney general, who has delegated it to the Drug Enforcement Administration (a division of the Justice Department). In fact, the DEA has repeatedly rejected petitions to reschedule marijuana, most recently in 2011. I forget: Who was president then?
Apparently Obama forgot too. Obama often speaks as if he is an outside observer of his own administration—condemning excessively long prison sentences while hardly ever using his clemency power to shorten them, sounding the alarm about his own abuses of executive power in the name of fighting terrorism, worrying about the threat to privacy posed by surveillance programs he authorized. Now here he is, trying to distance himself from his own administration’s refusal to reclassify marijuana.
I think the only imaginable defense of Obama’s incoherent, hypocritical, immensely harmful marijuana position is that he’s gone further than any previous president towards admitting that throwing people in jail for pot use is an injustice.
But one, that’s damning with faint praise.
And two, Obama’s statements about pot come in the context of the most pro-pot-legalization American public since polling on the subject began. Obama deserves no points for timidly inching in the direction the American public is already running.
Mark Kleiman – who I don’t always agree with, but he’s a genuine expert in this area, and I trust him to know the facts – convincingly argues that it’s Reason’s Sullum, not Obama, who doesn’t understand the law and the President’s powers regarding marijuana’s legal status.
So administrative rescheduling would not make “medical marijuana,” or any other kind, legal at the federal level. Its practical effect would be identically zero.
What’s actually needed in the way of administrative action is to get the DEA and the Public Health Service out of the way of medical research, by breaking the University of Mississippi monopoly on research cannabis and eliminating the requirement that researchers using cannabis (but no other controlled drug) have the material “granted” to them by a federal agency rather than just going out and buying it. The Obama Administration can and should be criticized for not having taken those steps.
But “rescheduling” is a red herring dragged across the trail of policy reform.
UPDATE 2: See the comments for a lot of folks pushing back against Kleiman.
Seems to me that the President could order the Attorney General (he’s the A.G’s boss, right?) to order the DEA (the Attorney general is THEIR boss, right?) to recognize and abide by their own Judge’s 1988 ruling, provided in PDF format here: http://files.iowamedicalmarijuana.org/imm/young.pdf
Now that won’t legalize cannabis, but with the threat of censure and prosecution by the DEA removed from doctors, I can see them being much more willing to try a safe herbal intervention over a costly, side effect plagued pharmaceutical intervention. Not that we NEED the rescheduling to get medical marijuana, witness the many States who have already enacted it. But the biggest hurdle currently facing people who might benefit from cannabis in medical States is the difficulties they face finding doctors willing to prescribe it. The removal of that obstacle alone would be worth the effort we have put out.
Mark Kleiman is anything BUT an expert on cannabis or its users (medical OR recreational) and he took WA State for a huge sum of money for being a consultant on implementing I-502, while doing everything possible to thwart the intent of the law and the wishes of the voters in WA.
I’m with Windy on this one. Kleiman’s parting advice to Washington:
Kleiman spoke more, though, about reasons for the city and state to step up law enforcement against illegal dealers in order to gain market share and tax revenues for the legal system.
Now, if an illegal dealer is arrested “you just create a niche for another dealer,” he said. But under the state’s legal system the hope is that busting dealers would lead their customers to migrate to the legal system.
“But I don’t see any planning in law enforcement to take advantage of that opportunity,” he said.
Though none of the tax revenues from legal pot would go to law enforcement under Washington’s voter-approved law, Kleiman said it might be something for state lawmakers to consider changing.
Noting the history of racial disparities in marijuana enforcement, Councilmember Mike O’Brien said he’d be concerned that ramped up enforcement would “compound the problem.”
Kleiman said that’s certainly possible because poorer people and racial minorities might be more likely to use street corners for illegal pot commerce, and be subject to enforcement, than affluent white people.
“I think it’s worth taking the transition cost,” Kleiman said, in order to undercut the illicit market.
What’s a little racial disparity, when you’ve got turf to protect? says the affluent white guy. While the voters thought they had voted against the violent excesses of drug-war enforcement, their overpaid consultant advocates yet another “surge”. Bah.
The answer to the question of who has the power to remove it is in Part B (a) (1) & (2).
Kleiman is trying look like he is debunking Jacob’s argument, but a careful reading shows he is just saying it won’t do much in his opinion – which you are supposed to accept as fact due to his expertise. Kleiman points out that doctors won’t be able to prescribe it after rescheduling. But did Jacob say it could be prescribed or legal after that? Nope, so who is Kleiman arguing against?
Kleiman is a shady fuck. As far as I can tell he’s a drug warrior technocrat who wised up about this battle being lost and looks primarily to continue extracting technocratic drug war profits as best he can under a legal regime, taking the people of Washington for a cool million or so so far, and ensuring that the government remains vaguely disapproving and discouraging of marijuana use, e.g. taking “increased marijuana use” as a negative seems to be a given for him.
The sad thing is he probably is the biggest expert who’s not a legalization activist.
Kleiman is reacting to an argument I did not make. He concedes that “authority to reschedule cannabis lies with the Administration.” See my reply.
I think one of the weakest phrases in the English language is “I wish I could help but my hands are tied.” I’d rather be honestly told to go to Hell than be told dishonestly by another person they empathize but can’t do a thing.
If the President can’t unilaterally do the right thing, he can still demand the POWER to do the right thing. Or do it anyways and let the Supreme Court or Congress try to overturn it.
But then learned helplessness in others is one of the triggers to my rage addiction, so maybe I expect too much from someone called “The President.”
Kleiman points out that doctors won’t be able to prescribe it after rescheduling.
Because of the FDA? Not coincidentally, the FDA (acting on behalf of HHS) can also recommend rescheduling a drug. IIRC, the DEA has actually rejected a petition to reschedule marijuana on the grounds that HHS makes those decisions. The Secretary of HHS, and the Commissioner of the FDA, are likewise presidential appointees.