Under federal law marijuana is still classified as schedule I meaning it has no accepted medical value. That is why it is illegal to prescribe or take it as medicine under federal law. Individuals though are allowed to petition the executive branch about rescheduling a drug based on new scientific research. The executive branch has the legal authority to change any drugs classification without the need for Congressional approval.

So far every such petition regarding marijuana has been rejected by the government with the most recent rejection in 2011. In response Americans for Safe Access and medical marijuana patients filed suit arguing the Drug Enforcement Agency was ignoring the scientific evidence.

While the court ruled that defendants in the case did have standing to bring the suit they concluded that the DEA acted within its authority. The DEA’s actions did not meet the arbitrary and capricious standard. From the Court:

On the merits, the question before the court is not whether marijuana could have some medical benefits. Rather, the limited question that we address is whether the DEA’s decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious. These questions are not coterminous. “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a “currently accepted medical use.” The DEA’s regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define “currently accepted medical use” to require, inter alia, “adequate and well-controlled studies proving efficacy.” Id. at 1135. We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist.

With the court deciding not act it appears that it ultimately up to Obama administration whether or not change marijuana’s legal status to permit medical marijuana under federal law.

The Obama administration can choose to do so at anytime. Since the last petition was rejected in 2011, governors of several states with medical marijuana laws have already filed new petitions requesting the federal government move marijuana to a lower schedule.

It’s true that taking significant actions to improve many aspects of the economy will be very difficult for the White House unless they can get a reluctant Congress to approve new laws.  But there is at least one area where the administration has all the power it needs to make a huge impact: medical marijuana.

The executive branch already has the power to nationally legalize medical marijuana, and it doesn’t require Congressional action. The Controlled Substance Act gives the executive branch the authority to change the schedule — the classification –  of a drug.

The only reason medical marijuana can’t be legally prescribed under federal law is that it is a schedule I drug, meaning it is legally defined as having no “acceptable medical use.” But President Obama can direct the relevant agencies under his control to move marijuana to schedule III or IV. This would make marijuana use legally permissible like other schedule III drugs, such as Vicoden. This would allow doctors to legally prescribe and clinics to legally supply patients with medical marijuana, while still keeping recreational marijuana illegal.

This would be not an extraordinary or unusual executive action for Obama to take. Prescription drugs are often rescheduled by the executive branch based on new evidence. Nor would it be a politically unpopular move. Last year a Pew poll found 73 percent support medical marijuana and an ABC News/Washington Post poll found 81 percent support medical marijuana.

The current federal prohibition against medical marijuana is costing jobs and hurting patients all over the country. The Obama administration’s aggressive enforcement of the federal laws against medical marijuana is preventing some states from opening medical marijuana clinics and forcing clinics to close in other states. This directly costs many jobs in the field and indirectly reduces public sector jobs by reducing local tax revenue.

If Obama is serious about the claim “we can’t wait” for the Congressional Republicans, that policy should apply to medical marijuana; he doesn’t need to wait for Congress. The Obama administration can change the rules to legalize medical marijuana at the federal level and can stop his administration’s aggressive enforcement against it. The only thing really standing in the way of making medical marijuana legal right now is the Obama administration, not Congress.

Since Obama has this very popular, deficit reducing way to create thousands of jobs that doesn’t require Congressional action, my question to him is: Why are you making us wait?