In his continued bizarre defense of Obama’s decision not to reschedule marijuana Mark Kleiman makes a big deal out of this technical distinction. From Kleiman:
That essay doesn’t include one item on which the discussion has been especially confused: the claim that the President, by himself, has the power to reschedule. In fact, the Controlled Substances Act gives that power to the Attorney General, and requires that the AG get medical advice from the Secretary of HHS and take that advice as authoritative. The AG has delegated his responsibility to the DEA Administrator, and the HHS secretary has delegated hers to the FDA Commissioner. [...]
Arguably, the AG and HHS Secretary could decide to change that legal standard; the courts, having deferred to administrative discretion in the earlier case, might do so again. But it’s not as simple as someone saying, “Gee, I’d like to reschedule cannabis this morning.” And though the President appoints the officials in question and can fire them, the power under the law does not belong to the President.
This is true of almost all executive actions that Obama has taken. For example, almost everyone reported “Obama” decided to defer action for children arrivals even though the memo was technically sent by Department of Homeland Security Secretary Janet Napolitano. Similarly, everyone says that “Obama” offered a one-year extension to grandfathered health care plans even though it was the HHS which technically carried out the regulator change.
Attorney General Eric Holder was appointed by Obama and is a close personal friend. HHS Secretary Kathleen Sebelius was one of Obama’s biggest political supporters from before he became president. If he asked them to something to advance his policy goals, they would do it. That is why he put them in his cabinet in the first place.
No one has been arguing that if Obama simply yelled out “Marijuana is now rescheduled” it would magically be done that day. There is a process, but Obama has the power to make it happen.
Jon Walker is the author of After Legalization: Understanding the future of marijuana policy
“Mounted Cossacks” by Ludwig Gedlek