About the book Green Rush: The Rise of Medical Marijuana in the United States by Daniel J. Mallinson and A. Lee Hannah, published by NYU Press.
Biden’s Marijuana Reform Faces Delays and Federal Pushback
While the Biden Administration’s effort to reschedule marijuana seemed long overdue, the process has not been smooth and is now uncertain under the new Trump Administration. In the fall of 2022, Biden directed the Department of Justice (DOJ) and Department of Health and Human Services (HHS) to review marijuana’s placement on the Controlled Substances Act schedule.
In September of 2023, Health and Human Services recommended that marijuana be rescheduled from Schedule I (a category of drugs with “a high potential for abuse” with “no currently accepted medical use in treatment in the United States”) to Schedule III (a category of drugs with “a potential for abuse less than the drugs or other substances in schedules I and II” and “a currently accepted medical use in treatment in the United States.”).
Given that thirty-eight states have medical marijuana policies and twenty-four also have recreational policies, federal prohibition has become untenable in recent years.
In May of 2024, the Department of Justice joined HHS and recommended rescheduling. The final step of rescheduling was left to the Drug Enforcement Agency (DEA) which requires a formal rulemaking process of administrative hearings and public comments. The DEA process has been beset with delays, perhaps exacerbated by the presidential transition.
Given that thirty-eight states have medical marijuana policies and twenty-four also have recreational policies, federal prohibition has become untenable in recent years. Even conservative Justice Clarence Thomas opined in 2021 that “[a] prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”
However, Trump’s appointee to head the Drug Enforcement Administration has advocated for a “just say no” approach to drugs. And newly confirmed Secretary of HHS, Robert F. Kennedy, Jr., a vocal supporter of marijuana legalization when he was a Democratic candidate for president, has backed off of that position during the confirmation process expressing concerns about the “catastrophic impacts” that marijuana legalization can have on some people and arguing that the legal programs will allow the HHS to do more studies on it (ignoring the fact that HHS just wrapped up such a study a year ago).
Regardless of whether rescheduling goes forward, the future of marijuana policy in the United States will still be worked out by the states. This means that for those outside the United States who are paying attention to drug policy here, they must understand the dynamics of American federalism and pay attention to the states.
State Policies vs. Federal Uncertainty
In our book, Green Rush: The Rise of Medical Marijuana in the United States (NYU Press), we argue that you have to look to the states if you want to understand the current status of marijuana and drug policy reform in the United States. Since 1996, states have been liberalizing marijuana policies in defiance of federal prohibition.
Federal rescheduling will leave in place many problems facing state medical and recreational marijuana programs.
Medical policies that started with minimal regulations and even less certainty, have become ubiquitous and highly regulated. States haven’t just ignored federal law, they have facilitated the rise of federally-prohibited industries and products within their borders.
Yet medical and recreational policies are only protected by federal nonenforcement, or forbearance.
Nonenforcement has been tenuously held by the federal government through Department of Justice (DOJ) directives and a budget rider that has been passed by Congress since 2015 holding that the DOJ should not interfere in states and territories “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” [emphasis ours].
Note that nothing is really protecting state-legal recreational marijuana from a federal crackdown. And moving marijuana to Schedule III means that businesses are still selling a controlled substance, leaving recreational and medical businesses in a legal gray area.
What We Can Expect with Rescheduling
Marijuana has been classified as a Schedule I drug since the passage of the Controlled Substances Act in 1970. Schedule I drugs are deemed to have “no currently accepted medical use and a high potential for abuse” and include LSD, ecstasy, methaqualone, and peyote.
The move to Schedule III classifies marijuana as a drug with “moderate to low potential for physical or psychological dependence” and puts it in the same category as codeine, ketamine, anabolic steroids, and testosterone. Notably, formulations of the substances in Schedule III can be approved by the FDA, prescribed, and used for medical reasons. Moving marijuana from Schedule I to Schedule III will have two immediate consequences. One will impact marijuana production and the other will impact medical research on marijuana.
First, rescheduling will be welcomed by marijuana businesses that currently pay high effective federal tax rates. Section 280E of the U.S. tax code prohibits businesses that deal with Schedule I or Schedule II substances from making any deductions for business expenses. While other businesses can deduct expenses like rent, legal fees, and more, marijuana businesses cannot. Moving to Schedule III should significantly reduce their tax burden and operating costs which should lead to lower prices for patients and consumers.
Second, rescheduling could jumpstart medical marijuana research. Currently, researchers face regulatory and supply hurdles that make it nearly impossible to conduct clinical trials. While registering to conduct Schedule III research is easier, researchers still have to navigate a lot of red tape including only using cannabis from federal suppliers and dealing with onerous FDA requirements.
States Remain the Laboratories for Marijuana Policy
At the end of his term in 2016, President Obama was pressed by a reporter on why his Administration had not done more to push marijuana policy forward. Obama responded, “There’s something to this whole states-being-laboratories-of-democracy.” Essentially, he punted.
Obama’s phrase comes from a U.S. Supreme Court opinion in 1932 where Justice Brandeis argued that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” It’s been eight years since that interview, and even though 38 states have medical marijuana policies and another 24 have recreational policies, the states remain the ones running the experiments.
Even though former President Biden took the biggest step yet on federal marijuana reform – it will still take a long time for these changes to make their way down to the states. Federal rescheduling will leave in place many problems facing state medical and recreational marijuana programs. So the states will continue to experiment, technically in defiance of federal law, even as the federal government finally begins to move towards them in recognizing public demand for changes in the nation’s drug laws.
