When it comes to how he has handled the federal/state conflict regarding medical marijuana and he will handle now that two states have adopted full legalization, President Obama has a habit of lying to try to shift responsibility on to Congress. Once again, in an interview with Barbara Walters that will air this evening, Obama heavily implied that he would need Congress to change marijuana’s legal status. From ABC News:

Obama told Walters he does not – “at this point” – support widespread legalization of marijuana. But he cited shifting public opinion and limited government resources as reasons to find a middle ground on punishing use of the drug.

“This is a tough problem, because Congress has not yet changed the law,” Obama said. “I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”

With 99 percent of federal laws this would be the case, but the Controlled Substance Act is fairly unique. The law explicitly gives the executive branch the right to change the legal status of any drug without Congressional involvement. If the administration, after examining the latest scientific research, determines that cannabis shouldn’t be Schedule I it has the power to move it to a lower schedule, which would make medical marijuana legal under federal law, or even unschedule it all together, which would effectively legalize it.

Several sitting governors in states with medical marijuana have petitioned Obama asking him to reschedule marijuana, and currently the Obama administration is actually fighting an effort in federal court to get the executive branch to provide a legitimate review of marijuana. There is no reason Obama can’t simply stop fighting the case and reschedule marijuana without needing to involve Congress.

Of course there are many political and regulator reasons why it would be better for Congress to adopted a new law tailored to address the issue, but the point is Obama isn’t helplessly constrained by federal law on this matter like he pretends to be. The federal law currently gives Obama incredibly wide latitude on this issue, including the ability to unilaterally change marijuana’s legal status.

Mason-Dixon 5/10-14
Do you feel President Obama should: (ORDER ROTATED)
- Respect the medical marijuana laws in these states, or
- Use federal resources to arrest and prosecute individuals who  are acting in compliance with state medical marijuana laws?
74% Respect State Laws
15% Prosecute Fed Law
11% Not Sure

The desire for the federal government to leave states alone when it comes to medical marijuana is strong across the political spectrum, with a solid majority of Democrats (75%), Independents (79%) and Republicans (67%) all feeling President Obama should respect state laws.  In addition, a solid majority of every age group, race and gender think state medical marijuana laws should be respected by the federal government.

Not surprisingly, national support for the federal government leaving state medical marijuana programs alone closely matches the national support for medical marijuana in general. Clearly the American people think medical marijuana has value and the government shouldn’t stop sick people from obtaining it.

Unfortunately since Obama took office the executive branch has waged an aggressive multi-agency war on medical marijuana. Most observers have concluded that the federal crackdown on state medical marijuana programs under Obama has been worse than any other recent president, including George W. Bush.

Obama has claimed that his administration must go after any state medical marijuana system because it is against federal law.  But in reality the Controlled Substance Act gives the executive branch the authority to unilaterally reschedule cannabis to make it legal for medical purposes. This action would not require Congressional approval and would finally bring federal law on medical marijuana in accordance with the overwhelming wishes of the electorate.

[Wenner] Let me ask you about the War on Drugs. You vowed in 2008, when you were running for election, that you would not “use Justice Department resources to try and circumvent state laws about medical marijuana.” Yet we just ran a story that shows your administration is launching more raids on medical pot than the Bush administration did. What’s up with that?

[Obama] Here’s what’s up: What I specifically said was that we were not going to prioritize prosecutions of persons who are using medical marijuana. I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana – and the reason is, because it’s against federal law. I can’t nullify congressional law. I can’t ask the Justice Department to say, “Ignore completely a federal law that’s on the books.” What I can say is, “Use your prosecutorial discretion and properly prioritize your resources to go after things that are really doing folks damage.” As a consequence, there haven’t been prosecutions of users of marijuana for medical purposes.

(emphasis mine)

This is an outright lie by Obama about federal law regarding medical marijuana. Drugs are governed under the Controlled Substance Act, and the important thing is that this law explicitly gives the executive branch the power to unilaterally change the legal status of particular drugs. Obama wouldn’t need to “nullify congressional law,” because he currently has the legal power to change marijuana’s classification.

Marijuana is categorized as schedule I, which means it legally has no accepted medical use. This is why medical marijuana, while legal under some state laws, is illegal under federal law.

However, the law explicitly gives the executive branch the power to change the scheduling of particular drugs without needing Congressional action. Obama can instruct the relevant agencies under him to take an honest look at the research and reschedule marijuana so it qualifies as having legitimate medical uses. The Obama administration could easily and justifiably move marijuana to, say, schedule III, which happens to be the same schedule that synthetic THC is in, making medical marijuana legal under federal law.

There would be nothing unusual, extraordinary or legally suspect about Obama doing this. The executive branch has often moved certain drugs to lower or higher schedules based on new data without Congressional involvement. In fact, multiple sitting governors have petitioned the Obama administration asking him to move marijuana to a lower schedule, so he should be aware of the flexible authority he has.

Obama is not some hapless victim whose actions on this issue are constrained by congressional law. The truth is pretty much the exact opposite. Under current law Obama effectively has the power to unilaterally make medical marijuana legal. Obama is not legally forced to wage a war on medical marijuana; it is something his administration is actively choosing to do.

VT Gov. Peter Shumlin (photo: VT Governor's office/flickr)

A spokesman for Vermont Governor Peter Shumlin (D) told the AP that he will join the recent petition filed by other governors to the federal government requesting marijuana be rescheduled. Yesterday, Washington state Governor Christine Gregoire (D) and Rhode Island Governor Lincoln Chafee (I) jointly filed the petition to the Drug Enforcement Agency asking that marijuana be moved from schedule I to at least schedule II.

Moving marijuana, which is currently schedule I, to a lower schedule will allow medical marijuana to be legally prescribed at a federal level. Currently marijuana is schedule I, which means -according to federal law- it has “a high potential for abuse, has no currently accepted medical use in treatment in the United States.” As a result marijuana can’t be legally prescribed according to federal law.

The executive branch of the federal government is allowed to change a drug’s scheduling and does with some frequency. Moving cannabis to schedule II or schedule III would allow doctors to legally prescribe marijuana under federal law, while still keeping it illegal for recreational use.

Gov. Shumlin has traditionally been very good on marijuana policy reform issues so his willingness to join this new push isn’t surprising but is still encouraging. While it is too early to tell if this new petition by the governors will actually produce any change in federal policy, it is still a very important development for the marijuana reform movement. Having now three seating governors publicly stating the federal government’s current stance toward medical marijuana is absurd and needs to change is a powerful sign that the issue is gaining significant traction.

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?