A Lawful Executive Action: Declassifying Marijuana
I’ve been quite hard on President Obama for his abuse of executive power — and will soon file another brief in the 26‐state challenge to his immigration action — but there are certainly things that he or any president can do to protect and secure our liberty without violating the Constitution. One such executive action would be to “declassify” marijuna: remove it from the list of controlled substances (or at least move it further down the list, which would have significant positive legal effects). I explain in this video:
In case you don’t have time to watch, here’s a transcript:
While legalizing marijuana as a matter of federal law would take an act of Congress, President Obama can decriminalize it. He can do this by moving it out of Schedule I of the Controlled Substances Act, which is reserved for substances of no medical purpose and a high potential for abuse, and therefore have high criminal penalties attached to their mere possession.
Virtually all marijuana‐related arrests are handled by state and local law enforcement. The federal Drug Enforcement Agency (DEA) simply lacks the resources to enforce the federal ban across all 50 states. That’s why the Justice Department decided not to fight the legalization of marijuana in the handful of states that have taken that step.
President Obama — without rewriting any laws or going outside of his constitutional authority — can direct the attorney general to start the process of reclassifying marijuana as a Schedule IV or V substance, or declassifying it altogether.
Reclassifying marijuana as a Schedule III substance or lower would have significant benefits for the budding marijuana industry and individual users. For example:
- The Internal Revenue Code prohibits the deduction of business expenses that relate to Schedule I or Schedule II trafficking;
- The Gun Control Act of 1968 prevents the sale of ammunition and firearms to the unlawful users of “any controlled substance”;
- A conviction for possessing a controlled substance can bar students from getting loans;
- And the rules are even stricter for public housing.
Declassifying marijuana would solve all of these problems.
But even merely reclassifying it would make it easier for legal businesses to access the full economy and reduce violent crime.
Marijuana deregulation sits squarely within the control of the executive. The president should use his executive powers to allow for intelligent enforcement of drug policy without eroding the rule of law.
I guarantee that if President Obama does this, he won’t be impeached for high times crimes and misdemeanors.
