Tom Williams/CQ Roll Call via AP Images
Senate Majority Leader Chuck Schumer (D-NY), center, and Sens. Cory Booker (D-NJ), left, and Ron Wyden (D-OR) conduct a news conference on the reintroduction of the Cannabis Administration and Opportunity Act, at the Capitol Visitor Center, May 1, 2024, in Washington.
Nothing changes yet. Cannabis consumers could be forgiven for their frissons of excitement after news outlets pelted them with the “historic” and “major” and “paradigm-shifting” importance of Tuesday’s Drug Enforcement Administration botanical cannabis rescheduling announcement. But Senate Democrats did the Biden administration one better the very next day by reintroducing the Cannabis Administration and Opportunity Act, which would legalize cannabis and create a national regulatory framework along the lines of what exists for alcohol and tobacco.
It’s now clear why Senate Majority Leader Chuck Schumer (D-NY) greeted the DEA announcement with the congressional equivalent of a shrug. Two-thirds of the public supports the legalization of marijuana, but descheduling the drug is thus far not on the table. That said, Congress cannot get out of its own way to even advance minor, commonsense reforms that stop well short of legalization.
Schumer has committed himself to trying to strong-arm both the Secure and Fair Enforcement Regulation (SAFER) Banking Act and a weak stablecoin regulation package, by attaching them to the Federal Aviation Administration reauthorization bill. In the House, versions of SAFER have passed seven times. But in the Senate, SAFER has only four Republican co-sponsors, CAOA none, and Republicans are less than thrilled about attaching the SAFER bill to must-pass legislation like the FAA measure.
That includes the Great Obstructionist, Senate Minority Leader Mitch McConnell (R-KY), who has set to work on steering the cannabis banking bill straight into his personal legislative graveyard. Speaker Mike Johnson (R-LA) doesn’t want the FAA bill “turn[ed] into a legislative Christmas tree” either, with other bills hung on it like ornaments. That further dooms a quick victory for SAFER; and the prospects of full-scale legalization, where GOP prohibitionists hold sway, is even more remote.
So with the country in the grips of a fentanyl crisis, neither Congress nor the executive branch can turn loose cannabis. The congressional debate over legalization would be bad enough, if it weren’t matched by the interagency feuding that has been illuminated in the ongoing fight over rescheduling.
One hurdle that the Biden administration may be navigating is the internal DEA opposition to rescheduling marijuana. Last week, The Wall Street Journal reported that the DEA has reservations about the health benefits of cannabis and concerns about the higher potency of the marijuana strains available today. Like the proponents of gateway-drug theories in Congress, the DEA is one of the last bastions of prohibition in a country that has for the most part given up on simple marijuana possession as a major law enforcement priority. Moving cannabis to Schedule III may be as low as the powers that be are willing to go without sparking major (and potentially public) interagency warfare.
The Biden administration has also danced around taking cannabis off the Controlled Substance Act (CSA) list entirely, in favor of reclassification. President Biden has admitted that the federal government’s hard stance has ruined countless lives in Black and brown communities, but he prefers easing into restrictions and limited expungements for federal offenses over legalization.
Last summer, the Department of Health and Human Services recommended that the DEA move botanical cannabis out of the Schedule I netherworld occupied by heroin, LSD, and other drugs with no “currently accepted medical use,” and into Schedule III, reserved for drugs that have a lower potential for abuse than the ones in Schedules I and II. If and when a new rule is finalized, moving cannabis into the prescription drug realm, with medications like the pain reliever Tylenol with codeine, would downshift the associated criminal penalties.
A shift in drug enforcement targets has reordered priorities, and federal law enforcement is less interested in low-level cannabis possession than ever before.
The benefits of Schedule III are plain. One big one is for businesses that have entered the cannabis space, and have struggled to stay afloat due to federal law. Rescheduling would allow these businesses to shed the Section 280E restriction and finally be able to take advantage of deductions that they cannot currently use. This will significantly reduce their tax bills and make the selling of legal cannabis a more viable business to operate.
But perhaps the major upside of a Schedule III designation is that researchers would have an easier route to cannabis cultivation to assess the medical value of current strains—there are more than 700—as well as the applicability of those strains to specific diseases, and classification and potency regimes that would be uniform across the country. But medical research that might finally satisfy the DEA demands years, if not decades, of laboratory sleuthing to generate patient outcomes.
Moreover, a shift in drug enforcement targets has reordered priorities, and federal law enforcement is less interested in low-level cannabis possession than ever before. That said, a lack of interest by law enforcement doesn’t erase penalties from current statutes, which disproportionately continue to affect people of color.
Most public officials will admit that the fentanyl addiction crisis is exponentially more serious than racking up a few more marijuana convictions. “Fentanyl is the single deadliest drug threat our nation has ever encountered,” DEA Administrator Anne Milgram intones on DEA.gov. The site’s home page reflects that view, tallying fentanyl pills and powder seizures, “fentanyl supply chain” graphics, notable fentanyl busts and most-wanted fugitives, and warning about the threat of fentanyl laced with xylazine, an animal tranquilizer.
Despite pressure to reclassify fentanyl to Schedule I, it remains in Schedule II, while federal officials wring their hands about moving marijuana to Schedule III. How does the reality of tens of thousands more fentanyl overdose deaths—compared to those from marijuana—square with the decisions to legalize recreational cannabis or medical cannabis or both in state legislatures across the country?
The Wall Street Journal also recently noted the involvement by the Justice Department’s Office of Legal Counsel in cannabis interagency legal affairs, which raises the stakes. The OLC deals with legal queries from executive branch agencies; their opinions are binding on agencies unless the attorney general intervenes. Shane Pennington, an attorney who has worked on OLC cannabis-related issues, told the Cannabis Business Times that the Health and Human Services Department may have requested that the OLC weigh in—although he also admitted that it’s impossible for anyone except the participants to know which agencies are involved and what those questions might be.
“To the extent that there’s an issue that’s making it difficult for the process to move forward, you would think that it would be DEA that’s having the difficulty because DEA is the one that’s got to take the next step,” Pennington said. “Perhaps the explanation is that HHS requested OLC’s views earlier in the process—before it transferred its recommendation to DEA. Again, though, we just don’t know.”
All of this has created a situation where Americans will have waited well over three years just to begin the process to get marijuana into Schedule III. Incrementalism is not reform, but it is one way to weave through the intransigence of pearl-clutching politicians and bureaucrats consumed by their partisan passions and antique cannabis prejudices, until the votes show up for legalization.
