Marijuana is currently listed as a Schedule I drug, classifying it as a having no acceptable medical value, which creates a lot of legal issues for those needing medical marijuana. It was put in that schedule decades ago by Congress, but the Obama administration has the power to move it to a more appropriate classification at any time.
The recent executive decision to move Hydrocodone Combination from Schedule III to II shows how it works, this same basic process could be used to move marijuana from Schedule I to II, III or IV. From the DEA press release:
When Congress passed the CSA in 1970, it placed HCPs in Schedule III even though it had placed hydrocodone itself in Schedule II. The current analysis of HCPs by HHS and the DEA shows they have a high potential for abuse, and abuse may lead to severe psychological or physical dependence. Adding nonnarcotic substances like acetaminophen to hydrocodone does not diminish its abuse potential. The many findings by the DEA and HHS and the data that support these findings are presented in detail in the Final Rule on the website. Data and surveys from multiple federal and non-federal agencies show the extent of abuse of HCPs. For example, Monitoring the Future surveys of 8th, 10th, and 12th graders from 2002 to 2011 found that twice as many high school seniors used Vicodin®, an HCP, nonmedically as used OxyContin®, a Schedule II substance, which is more tightly controlled.
In general, substances placed under the control of the CSA since it was passed by Congress in 1970 are scheduled or rescheduled by the DEA, as required by the CSA and its implementing regulations, found in Title 21 of the Code of Federal Regulations. Scheduling or rescheduling of a substance can be initiated by the DEA, by the HHS Assistant Secretary of Health, or on the petition of any interested party.
The executive branch doesn’t just theoretically have the power to reschedule any drug without Congress, it is actually expected to use this power as needed based on the latest research. As we see here, drugs get moved to a lower or higher schedule all the time by the executive branch.
Since there is plenty of research showing marijuana has potential medical uses, it is basically a dereliction of duty for Attorney General Eric Holder to not reschedule marijuana, but instead of doing his job when it comes to marijuana rescheduling the administration has mostly fought and dragged its heels at every turn. Holder’s refusal to do so is a decision, which he effectively admitted; it’s not about legal constraints or science but about politics.
Jon Walker is the author of After Legalization: Understanding the future of marijuana policy