Several states will be voting on cannabis legalization measures this fall, but the big ticket draw this November is going to be Clinton v. Trump v. Johnson v. Stein. This post is the first in a four-part series examining the cannabis views and promises of these four candidates. We start with Hillary Clinton.
Will Hillary Clinton Reschedule Marijuana?
Clinton recently made headlines when her campaign announced that she would reschedule marijuana if elected. This statement came in response to the DEA’s recent decision not to reschedule marijuana. Her campaign promise is certainly good news for legalization advocates, but it certainly is no guarantee. President Obama made a similar promise while campaigning for the 2008 election, as reported in Rolling Stone:
Barack Obama insisted that medical marijuana was an issue best left to state and local governments. ‘I’m not going to be using Justice Department resources to try to circumvent state laws on this issue,’ he vowed, promising an end to the Bush administration’s high-profile raids on providers of medical pot[.]
But what actually happened was very different as President Obama’s first term saw countless federal government raids on dispensaries in states with legal medical marijuana programs. Hillary Clinton’s statement is a bit more direct and so we as voters might be better able to hold her accountable if elected. She explicitly states that she will reschedule cannabis and her Party has called for “pathways” to marijuana legalization in its official platform.
But Can Any President Reschedule Marijuana?
A recent Inc Article explains how a President Hillary Clinton could, in fact, reschedule marijuana. The President oversee the executive branch of the federal government. The executive branch has the power to execute the laws of the United States. In contrast, the judicial branch interprets those laws and the legislative branch creates them. Congress created the Controlled Substances Act in the 1970s. The Act gives authority to the U.S. Attorney General and the Department of Health and Human Services (DHHS) to remove a substance from a given schedule. For the purpose of the Controlled Substances Act, the Attorney General delegates its power to the DEA and the DHHS delegates its power to the FDA. The President has the power to remove the Attorney General and the heads of the DHHS and the FDA.
This removal power gives the President the ability to control these various agencies. If a department head fails to follow the President’s policy, the President can remove that person. But, reporters and voters take notice when these high profile figures leave office. For example, when former Attorney General Eric Holder resigned during Obama’s second term, right wing news outlets had a field day. Voters can view such drastic changes as a sign of instability within an administration.
If Clinton requests that department heads reschedule and they do not comply, it is not at all certain this failure to comply will lead to removals. Marijuana legalization is one of thousands of issues with which President Clinton will need to deal and she very well may not want expend political capital by firing someone over cannabis during her first term. The point of all of this is that rescheduling is a bureaucratic process where the President asserts control; it is not as simple as signing an order to change the schedule overnight. Though a President Clinton could help bring about the rescheduling of marijuana, it would likely be a slow-moving process and nothing is close to guaranteed.
Does Rescheduling Matter To States That Have Legalized?
If marijuana were rescheduled to Schedule II or lower it would still not be legal to sell it for recreational use and it would not be legal to sell it for medical use without a prescription. A prescription may only be given for drugs approved by the FDA. The FDA requires precision in dosing, testing, and administering and this sort of precision can be difficult with a plant. For example, the level of cannabinoids found in a given marijuana plant can very greatly depending on the crop, even within a single strain. Further complicating this are the various methods of consuming cannabis. Smoking a joint has a different effect on the human body than eating an edible. All of this (and more) make it unlikely the FDA will approve cannabis for prescriptions even with new research pathways.
Hillary Clinton’s campaign statement about planning to reschedule cannabis is helpful for the legalization movement, but certainly not dispositive because the process to accomplish this will be complicated and politically delicate. And even if a President Hillary Clinton does actually reschedule cannabis, doing so would not legitimize any state-legal marijuana regimes.
EDITOR’S NOTE: Three of our California cannabis lawyers (Tiffany Wu, Alison Malsbury and Hilary Bricken) will be putting on a FREE webinar on September 14, moderated by our lead cannabis corporate lawyer (Robert McVay). This webinar will focus on what you should be doing now to prepare your existing or future cannabis business for California’s soon to be legalized landscape. Go here on Eventbrite to sign up to attend.