The Limits of Marijuana Reform: The Federal Government

Fotolia_62904321_Subscription_Monthly_M-300x300In April 2016, the Drug Enforcement Agency (DEA) announced it was reconsidering marijuana’s current list as a Schedule 1 Drug in the Controlled Substance Act. This announcement was met with skepticism and cautious optimism. The decision of the DEA to reclassify marijuana in the Controlled Substance List would allow national marijuana reform to circumvent the large hurdle of congressional action.

The State of Federal Marijuana Law
Currently, marijuana is illegal at the federal level under the Controlled Substance Act which defines marijuana as a Schedule 1 Drug. These schedules are characterized as:

 The drug or other substance has a high potential for abuse.
The drug or other substance has no currently accepted medical treatment use in the U.S.
There is a lack of accepted safety for use of the drug or substance under medical supervision.

Under the Controlled Substance Act, marijuana is unrecognized with any medical value, and doctors are not allowed to prescribe it. Schedule 1 Drugs also have extra administrative regulations that prevent the majority of medical studies of these drugs.

Since the Passage of the Controlled Substance Act in 1970, the Federal Government has vigorously enforced federal marijuana laws. However, in the 1980’s states began to reform their own marijuana laws.

In past decades, the threat of federal enforcement loomed large over these state programs, but by the late 2000s the Federal Government had begun to soften its hardline stance on state medical programs. This trend has continued today allowing twenty-six states with full medical marijuana programs, thirty-eight states all together with some form of medical marijuana, and four states plus Washington D.C. with recreational marijuana programs.

Federal Restraint, A Tenuous Reality
The Federal Government is kept at bay by executive discretion, legislative action, and constitutional law. The Executive Branch, under Presidents George Bush and Barrack Obama, has used its authority to stop the Department of Justice (DOJ) from purging state medical programs through federal prosecution.

Congress has also passed spending provisions into budget packages that prevent the DEA and the DOJ from spending funds on raiding and prosecuting legal medical marijuana operations. These legislative actions are very tentative though and require passage every time a budget is discussed.

However, the Federal Government is controlled by Constitutional Law. Following Supreme Court precedent in New York v. United States, the Federal Government is not allowed to commandeer state government functions. In New York, The Supreme Court held in a 6-3 decision that a federal law mandating that the New York legislature’s “take title” to land with low-level radiation contamination was an unconstitutional infringement of the 10th Amendment. The principle established in the case formed the basis of Colorado’s argument to the Supreme Court in 2016 in Nebraska and Oklahoma v. Colorado.

While the Federal government has allowed states to set their own policy, the threat of federal enforcement is still real. Legal state marijuana businesses are not allowed access to the nation’s banking system because  federal laundering and racketeering charges exist for banks that knowingly accept
“illegal drug money”. This leaves marijuana businesses as cash only operations and prime targets for robbery.

Even though the DEA is not allowed to use federal funds to raid legal state medical businesses, they still raid them. The DEA conducts these raids at their own expense, then pursues civil assist forfeiture against the legal operations. The DEA will take all of the business’s assets to recoup the cost of the raid and make some profit.

A Great Leap Forward, with Little Consequence
The DEA dictates the fate of federal marijuana reform, but continues to conduct raids and profit from them. The DEA has announced three times since 2000 that it was considering to reschedule marijuana, but each time has failed to do so.

If marijuana is rescheduled, what does that mean? If the DEA were to reschedule marijuana to Schedule 2, it would no longer be classified as one of the worst drugs. This may allow doctors in states with medical programs to prescribe marijuana rather than recommend it.

However, marijuana would not be legal everywhere. States that lack comprehensive medical marijuana programs would not gain access to marijuana. For example, Texas only allows marijuana to be used in the treatment of intractable epilepsy. If the Federal Government were to reschedule marijuana, a doctor would still not be allowed to proscribe marijuana to a cancer patient. This restriction on doctors is grimmer in states like Indiana where a doctor would not be allowed to proscribe marijuana at all even though he would be allowed to prescribe it federally.

Possibly the most beneficial consequence for marijuana being rescheduled is the potential for new medical research. Schedule 2 Drugs are much easier to study than Schedule 1 Drugs, and have less administrative regulations to clear. Further, medical marijuana businesses may be able to legally access the banking system.

The Limit of Federal Reform
The likelihood of the DEA rescheduling marijuana is low, but the discussion reminds us that Federal Law is integral for reform, yet for many a meaningless reform. Due to the legal congressional and executive action, a hodgepodge of legal state programs have been created. The need for federal reform is urgent to allow the medical market to flourish free from threat of federal force. Unfortunately, for states that have yet to see any reform, federal change is as hollow as the Reefer Madness rhetoric permeated in those states.

Written by Hunter White

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