TOPIC

Although the executive branch cannot directly order the DEA to remove marijuana from the Controlled Substances Act, it can begin the process that could lead to that result.

The President could direct the Department of Health and Human Services (HHS) to conduct a new scientific review of marijuana. The President would direct the review to be completed within one year and should focus on comparing the effects of marijuana with those of alcohol and tobacco.

As explained in our Marijuana is Safer than Alcohol page, the evidence is likely to show that marijuana is a safer alternative to both alcohol and tobacco. If HHS reaches that conclusion, it could recommend that the DEA remove marijuana from the Controlled Substances Act and regulate it more like alcohol and tobacco.

Under 21 U.S.C. § 811(b), if HHS recommends removing marijuana from control, the DEA is required to comply.

At the same time, the DEA should publish proposed regulations that would take effect alongside any descheduling order. Those rules would create a federal framework for producing, selling, and regulating marijuana after it is removed from the Controlled Substances Act.

Whether those regulations would survive court challenges is uncertain. However, the experience in Thailand shows that removing criminal penalties without putting regulations in place can create confusion, birth a wild west of marijuana, and make it easier for opponents to reverse legalization efforts.

Creating a regulatory framework at the same time as descheduling would provide a smoother transition and could encourage Congress to pass permanent legislation establishing a strong, well-regulated national cannabis market.