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Bob Egelko, San Francisco Chronicle
When it comes to the regulation of marijuana, President Obama has had a hard time squaring his words with his actions - most notably, his campaign promise to defer to state medical marijuana laws, followed by a flurry of federal raids on state-licensed dispensaries and the closures of hundreds in California.
Now Obama has discussed the subject in a national television interview, and it's hard to reconcile his words with the law.
It happened Jan. 31, when CNN's Jake Tapper brought up the president's headline-making observation during a recent New Yorker magazine interview that marijuana was no more dangerous than alcohol. Could that mean, Tapper asked Obama, that he would consider removing marijuana from Schedule One of the Controlled Substances Act, reserved for dangerous drugs that have no accepted medical use?
"What is or isn't a Schedule One narcotic is a job for Congress," Obama replied.
When Tapper said he thought the Drug Enforcement Administration made the decision, Obama responded, "It's not something by ourselves that we start changing. No, there are laws undergirding that determination."
Tapper then asked if Obama would support such a change, and the president changed the subject, saying marijuana, like alcohol, was subject to abuse, and that its users face long sentences that sometimes have racial disparities.
White House spin
The White House has tried to spin his comments, suggesting that Obama was really saying it was a job best suited for Congress, which placed marijuana in Schedule One in 1970, alongside heroin and LSD, and has repeatedly rejected bills to ease restrictions. But the straightforward meaning of his words was that he and his administration have no authority to reschedule the drug "by ourselves."
That's not the law.
"You can add to the schedules by regulation," said Marsha Cohen, a UC Hastings law professor and co-author of "Pharmacy Law for California Pharmacists," a book in its seventh printing. "The DEA could do it. ... Most changes are made by the DEA."
That's evident from the battles the Obama administration has fought in the DEA and the courts to maintain the current prohibitions on marijuana. It's also clear from the text of the Controlled Substances Act, the 1970 law that bans or restricts the distribution of various drugs in the United States and overrides more permissive state laws.
The law says the attorney general, by enacting regulations, can "remove any drug or other substance from the schedules" if the attorney general decides it belongs in a less-restricted category. Every attorney general has delegated that authority to the DEA.
The law also says the secretary of Health and Human Services gets to determine, after conducting an evaluation, whether a drug that is being considered for rescheduling has medical uses, and can even decide unilaterally that "a drug or other substance not be controlled." The secretary has assigned those evaluations to the Food and Drug Administration.
The attorney general, other Cabinet secretaries and administrators at federal agencies such as the DEA and FDA are all appointed by the president.
Even DEA agent and spokesman Joseph Moses, who insisted that his agency's primary roles in such proceedings were law enforcement and security, acknowledged that the executive branch, and not just Congress, has the power to reschedule a drug.
"If the president wanted rescheduling, I don't think he'd have a hard time persuading the DEA to do so," said San Francisco attorney Joseph Elford, who was involved in the most recent effort to get the DEA to remove marijuana from Schedule One. "He could do it if he wanted to, and he's choosing not to."
Moving marijuana to Schedule Two would allow doctors to legally prescribe it. Other Schedule Two drugs include morphine, Ritalin, methamphetamine and cocaine.
The DEA has battled rescheduling efforts for years, beginning in 1972, when the National Organization to Reform Marijuana Laws asked the agency's predecessor, the Bureau of Narcotics and Dangerous Drugs, to move marijuana to Schedule Two.
The agency refused to consider it, relented after a court order, and finally ordered public hearings before the DEA's chief administrative law judge, Francis Young - who concluded in 1988 that cannabis was "one of the safest therapeutically active substances known to man" and should not remain under strict prohibition.
President Ronald Reagan's DEA administrator, John Lawn, rejected Young's findings and adopted regulations tightening the criteria for rescheduling. A federal appeals court upheld his decision in 1994.
Similar events unfolded after organizations led by Americans for Safe Access sought to reschedule marijuana in 2002. The DEA sat on the request for most of the George W. Bush administration, then rejected it in 2011 under Obama.
Federal courts again upheld the decision, saying the DEA had reasonably concluded - despite scientific reports suggesting that marijuana had medical benefits - that no large-scale, long-term studies had been conducted to confirm those findings. Another petition is pending before the DEA from the governors of Washington, Rhode Island, Vermont and Colorado.
"The Obama administration fought strenuously against reclassification" in the DEA proceedings and the court case, said Kris Hermes, spokesman for Americans for Safe Access in Oakland. He said Obama was "trying to pass the buck to Congress" on marijuana - in contrast with the president's State of the Union speech, in which he promised executive action to bypass congressional logjams.
Easing supply barriers
Rescheduling pot as a Schedule Two drug, or the less-restricted Schedule Three - the classification of the cannabis pill Marinol - would make it available by prescription in pharmacies. Government barriers to supplies for research would also be eased.
"It would not make it legal to smoke pot," said UC Hastings' Cohen, who contends marijuana patients are better off with vaporizers than reefers and wants the federal government to clear the way.
"There is obviously an accepted medical use in practice," she said.