Paul Sancya/AP Photo
Bernie Sanders and Elizabeth Warren at the Democratic presidential debate in Detroit, July 2019
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
Virtually every Democratic presidential candidate has endorsed the legalization of marijuana, a sea change from just a few years ago and a testament to the rapid shift in public opinion on this issue. But up to this point, no candidate had formally promised to get this done through executive action rather than signing a bill into law.
Now, two of the leading candidates, Senators Bernie Sanders and Elizabeth Warren, have confirmed in written replies to the Prospect that they would use their executive authority to deschedule cannabis under the Controlled Substances Act, which would effectively legalize the drug at the federal level.
“We will take executive action to deschedule and legalize marijuana nationwide and expunge as many prior marijuana-related convictions as possible,” wrote the Sanders campaign in response to a questionnaire supplied to all presidential candidates on what executive actions they would commit to. Warren wrote to the Prospect, “I support delisting marijuana as a Schedule I drug to limit federal intervention when states have already legalized marijuana … I also support the full legalization of marijuana and restorative justice for those unjustly jailed for marijuana crimes.” Her office confirmed that this was an endorsement of administrative descheduling.
Beto O’Rourke, who wrote a book advocating for cannabis legalization back in 2011, and who joined a bipartisan letter asking President Obama to reschedule or deschedule cannabis in 2014, also stated to the Prospect that he would use administrative authority. But he did not specify whether he would simply reclassify marijuana as a less dangerous drug, or delist it altogether from the Controlled Substances Act. O’Rourke’s plan for marijuana legalization, announced last week, points to “amend[ing] federal statutes to lift the federal prohibition on marijuana,” but does not specifically vow that he would carry that out under executive authority.
As Gabrielle Gurley writes for our Day One Agenda package, the next attorney general can review marijuana’s status as a Schedule I drug, the most restrictive of the Controlled Substances Act’s five tiers. Rescheduling pot would move it to a lower level, allowing it to be scientifically studied through medical research and clinical trials. But descheduling it would remove it from the Controlled Substances Act entirely, ending the federal prohibition.
Warren’s and Sanders’s statements go further than the rest of the field because of the promise to pursue descheduling administratively. During this congressional session, presidential candidate Senator Cory Booker (D-NJ) has introduced the Marijuana Justice Act and the Next Step Act; both would deschedule cannabis legislatively. Other candidates, including Warren, Sanders, and Kamala Harris, have co-sponsored the Marijuana Justice Act, and Tulsi Gabbard has signed on to the House version. Virtually every other candidate still in the race has endorsed full legalization, with the notable exception of Joe Biden, who has favored decriminalization, and rescheduling cannabis to Schedule II, a slightly less restrictive category.
The difference between legislative and administrative descheduling is the difference between letting Mitch McConnell or Joe Manchin determine the fate of the policy or having the president take the matter into their own hands. Many state legislatures that expected to legalize cannabis this year have run into trouble. Despite the shift in public opinion, enough hardcore drug warriors sit in Congress that enactment of a descheduling bill would not be assured, not least because some of their donors profit from long prison sentences.
But administrative descheduling would be legal, and involve far less hoop-jumping. The attorney general must consult with the Food and Drug Administration, the Department of Health and Human Services, and the Drug Enforcement Administration to receive scientific findings about the drug, and recommendations for the best course of action. Of course, the next president will appoint the heads of all those agencies, and can move the policy architecture to pursue the outcome they desire.
Democratic candidates are starting to become more comfortable with the idea of using executive authority granted by Congress. For example, the Sanders campaign announced over the weekend that it would build a public credit registry out of the Consumer Financial Protection Bureau, to replace Equifax and the other credit reporting bureaus that furnish information about individual creditworthiness to lenders. Graham Steele called for that in his Prospect article about the next president’s options to overhaul the financial industry.
“Bernie has long believed that our current credit reporting system is riddled with errors and hurts consumers,” the campaign informed the Prospect a week before Sanders released his plan. “Bernie will authorize the creation of a public credit reporting bureau that does not negatively impact a consumer’s score due to medical debt.”
Legalizing marijuana, and putting an end to a harmful drug war that has trapped millions of people in a spiral of incarceration and hardship, would be very powerful, and the option of taking executive action makes it more feasible. Sanders and Warren are taking the lead on realizing presidential power to make progressive change; others may eventually be forced to follow.
