Marijuana Could Be Decriminalized at the Federal Level in Several Ways, Not Just by an Act of Congress

Public support for the legalization of marijuana for, at a minimum, medical purposes appears to be at an all-time high. Some jurisdictions in the U.S. have decriminalized it for both medicinal and recreational use, but federal law continues to place it among the most highly restricted drugs. Several events in the past year have raised the possibility of changes in federal law—although, to be clear, this remains almost purely hypothetical at this point. In February 2015, Surgeon General Vivek Murthy stated that marijuana “can be helpful” for some patients and called for science-based changes to federal policy. The Brookings Institute released a report later that month outlining possible ways to modify the drug’s legal status. At least one presidential candidate has expressed support for decriminalizing marijuana.

Marijuana gained its current legal status under federal law as a Schedule I controlled substance when Congress passed the Controlled Substances Act (CSA) of 1970, 84 Stat. 1236, 21 U.S.C. § 812(c)(I)(c)(10), 21 C.F.R. § 1308.11(d)(1). The CSA defines a Schedule I drug as one with “a high potential for abuse,” “no currently accepted medical use,” and little to no “accepted safety for use of the drug…under medical supervision.” 21 U.S.C. § 812(b)(1).

The CSA also states that any drug on any of the Schedules could be “specifically excepted or…listed in another schedule.” 21 U.S.C. § 812(c)(I)(c). Various members of Congress have introduced legislation over the years to reschedule marijuana or remove it from the CSA schedules entirely. The first was H.R. 4498, which was introduced in September 1981, referred to a House subcommittee two days later, and never heard from again. Most bills addressing this issue have met similar fates.

As noted in the Brookings report, Congressional approval is not needed to reschedule—or possibly even deschedule—marijuana under the CSA. The Attorney General has the authority to reschedule drugs or remove them entirely “if he finds that the drug…does not meet the requirements for inclusion in any schedule.” 21 U.S.C. § 811(a)(2). The CSA establishes procedures and criteria for reviewing whether to reschedule or remove a drug, including the “actual or relative potential for abuse,” the “history and current pattern of abuse,” and “the state of current scientific knowledge regarding the drug.” Id. at §§ 811(b), (c).

The Secretary of Health and Human Services or any “interested person” may petition the Attorney General to reschedule marijuana or remove it from the schedules. 21 C.F.R. § 1308.43. The Attorney General, who oversees the Drug Enforcement Administration (DEA), must conduct an evaluation to determine if the drug is not properly scheduled. This process could result in amendments or modifications to existing DEA regulations, including rescheduling or removal of marijuana, although this seems unlikely.

The acting DEA administrator, who would play a prominent role in the review process, called medical marijuana “a joke” in late 2015. The DEA has taken the position that a drug must remain in Schedule I if it “has no currently accepted medical use in treatment in the United States,” regardless of whether it meets any of the other criteria for that schedule. 66 Fed. Reg. 20039 (Apr. 18, 2001). The Surgeon General’s recent statements may alter the general stance towards the drug, but the DEA may be more difficult to sway.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified marijuana possession attorney Michael J. Brown fights for the rights of defendants in west Texas facing drug-related charges. He draws on his experience as an Assistant U.S. Attorney, an Assistant District Attorney, and an FBI agent to provide strong defenses for his clients. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to see how we can help you.

More Blog Posts:

Medical Marijuana User’s Spouse Charged with Marijuana-Related Offenses; State Supreme Court Rules in Her Favor, Texas Criminal Lawyer Blog, January 18, 2016

Court Vacates Guilty Plea in Minor Marijuana Case that Resulted in Twenty-Year Prison Sentence, Texas Criminal Lawyer Blog, January 9, 2016

Federal Drug Laws Come into Conflict with Tribal Laws on Indian Land, Texas Criminal Lawyer Blog, December 23, 2015


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