President Obama Doesn’t Know He Can Reschedule Marijuana

President Obama is a tough guy to figure out on the marijuana issue. He famously admitted he inhaled, frequently, that was the point. He wrote about taking “total absorption” hits with his “Choom Gang”. He even said “the war on drugs is a failure and I think we need to rethink and decriminalize our marijuana laws” about a decade ago when running for office.

Then he became president and the issue of marijuana legalization was mocked, maligned, and ignored. President Obama’s DEA committed more dispensary raids in one term than his predecessor did in two. There were memos that seemed to indicate a willingness to allow regulated medical marijuana, then there were memos that walked that back a bit, and lately, memos that give Washington and Colorado encouragement to work out their legalization.

Now, in an interview last week with CNN’s Jake Tapper, the President had even more encouraging things to say about marijuana policy:

“I stand by my belief based on the scientific evidence that marijuana for casual users, individual users, is subject to abuse, just like alcohol is and should be treated as a public health problem and challenge,” he said.

Obama said his main concern is the criminalization of marijuana use.

“My concern is when you end up having very heavy criminal penalties for individual users that have been applied unevenly and, in some cases, with a racial disparity,” he said.

“I think that is a problem. We’re going to see what happens in the experiments in Colorado and Washington. The Department of Justice under Eric Holder has said that we are going to continue to enforce federal laws.”

That’s fantastic to hear from the president! His recognition that marijuana is “no more dangerous than alcohol” as he said a few days prior is critical to defining a rational drug policy. Cannabis is currently listed in Schedule I, alongside heroin, PCP, and LSD as dangerous drugs of abuse with no medical benefit, while alcohol kills far more people than all illegal drugs combined and isn’t scheduled at all.

So, what does President Obama say when asked about reconciling his belief about marijuana’s relative safety to alcohol with his Administration’s policy that marijuana’s as bad as heroin?

“First of all, what is and isn’t a Schedule I narcotic is a job for Congress,” Obama said.

Oh. And here I thought the President of the United States, who is chief of the Executive Branch and, therefore, boss of the Attorney General and the head of the DEA, might have some influence in the matter. I guess not. We have to rely on that Congress that can barely pass a budget and shut down the government, because back in the 1970s, they passed the Controlled Substances Act that put marijuana in the “completely illegal” category. Too bad, so sad, move on, nothing to see here…

Wait a minute. I’ve read the Controlled Substances Act (yeah, I’m wonky like that). Specifically, Title 21 USC Subchapter I Part B Section 811 Subsection (a)(2), which reads, in part, “the Attorney General may by rule remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.” The only catch is that he can’t violate a treaty while doing so, but moving cannabis out of Schedule I would not violate international narcotics control treaties.

So why the punt on rescheduling, Mr. President? In your State of the Union, you castigated the do-nothing Congress and asserted that you will use your executive powers where and when Congress won’t act. You could remove marijuana from federal drug scheduling altogether with the stroke of a pen but you delegate that to Congress? Your signature wouldn’t even “legalize” marijuana because every state would still have its marijuana regulations in place. If you really believe marijuana is no more harmful than alcohol, then failing to de-schedule it like alcohol and passing the buck to Congress is just petty and cruel.