Steven Senne/AP Photo
We’re now in Day 953 of the Biden presidency, but the Day One Agenda is still in process. As our friends at Capital & Main reported, the Department of Labor proposed new rules that will set the threshold for those salaried workers eligible for overtime at $55,000 and under, up from $35,568. And yesterday, the Department of Health and Human Services (HHS) recommended a rescheduling of marijuana under the Controlled Substances Act, from Schedule I to Schedule III.
Schedule I drugs are classified as the most dangerous, with no medicinal value and high potential for abuse. That currently puts marijuana in the company of LSD and heroin. Schedule III drugs are in the middle of the five classifications, with accepted medical use and “moderate to low abuse potential.” Tylenol with codeine, anabolic steroids, and ketamine are Schedule III drugs. In general, this class of drugs requires a prescription.
If marijuana were rescheduled to Schedule III, it would not make the current spate of state-level recreational and medicinal programs legal under federal law. It would make them, as law firm McGlinchey Stafford puts it, “a little less illegal.” Federal penalties for the use and sale of Schedule III drugs are much lower, for example. (President Biden has already pardoned thousands of people convicted of federal crimes for simple marijuana possession.) And cannabis research and development could be undertaken much more easily; it is nearly impossible to do research with human subjects under Schedule I because of restrictive protocols.
Perhaps the biggest impact would be the tax treatment of marijuana-related businesses. No longer would they fall under Section 280E of the tax code, which treats these businesses as drug traffickers and prohibits them from standard business deductions. This will not only make it cheaper to run a cannabis business, it will likely boost lending, given the signal that the government will be more lenient with these kinds of enterprises. Those loans will likely be more affordable as well, as more options become available. That’s good news for an industry that is always seemingly teetering on collapse, particularly on the West Coast.
Rescheduling would not legalize banking for cannabis businesses, but it could also give new life to the SAFE Banking Act, which Congress has tried to pass for a decade without success. There are 42 Senate sponsors (including eight Republicans) for the bill, which has repeatedly passed the House.
None of this, of course, will happen overnight. The HHS recommendation, which was asked for by the president, went to the Drug Enforcement Administration, a division of the Justice Department, which now must conduct its own review. The DEA has the authority to actually reschedule the drug, under the auspices of the attorney general. Given that Biden initiated the review, I think there’s a strong expectation that this rescheduling will take effect sometime next year.
But this is not descheduling, which would make marijuana effectively legal. America would still consider cannabis an illegal drug under this plan, with the attendant risks of arrest for sales and usage. Overall, the effects on individual consumers would be relatively minor, although if it allows more businesses to thrive, that would perhaps make purchasing pot easier and safer.
During the presidential campaign, Biden said he would only reschedule cannabis to Schedule II. So this is progress, but it’s rather minimal, and politically it won’t move the needle much. In a statement, Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, said: “While this announcement has significant symbolic value, a move to Schedule III would do little to address the most serious harms impacting communities that have been disproportionately targeted by marijuana criminalization.”
The best you can say about this first step is that it recognizes the historic wrong of classifying marijuana as an ultra-dangerous drug. But there’s a long way to go to fully remedy that wrong.
