Now that I have had some time to collect my thoughts and read the thoughts of others, I want to put Trump’s OE about rescheduling cannabis into context. To know how we should feel/think/react in this moment, it is crucial to understand how we got here, and it was not via an OE signed yesterday. For the full and illustrious story, I encourage you to read the article I wrote on this a year and half ago. But, if you want the Cliff’s Notes, here you go:
- The Controlled Substances Act (CSA) was signed into law by President Richard Nixon in 1970. It took drugs, both legal and illegal, and placed them on a schedule according to their known medical use, propensity for addiction and safety profile. Alcohol? Not on the list (but that’s another story).
- Cannabis was placed in Schedule I, the strictest category known for containing drugs that had no medical use, a high potential for abuse, and a low safety profile. Also in that group? LSD, psilocybin, and mescaline, which have been associated, like marijuana, with mind expansion, anti-authoritarianism and use among those raucous hippies of the 1960’s. Coincidence?
- Nixon claimed that Schedule I was a placeholder for cannabis until research could determine where it should be placed. He then brought on the National Commission on Marihuana and Drug Use to conduct that research. Also known as the Shafer Commission, they concluded their research in 1972 by saying that not only should cannabis not be Schedule I, personal use and possession should not be a crime. Infuriated, Nixon rejected their results and marijuana stayed in Schedule I.
- Over the next 50 YEARS, various advocacy groups like NORML, MPP and Americans for Safe Access filed petitions to the Department of Health and Human Services asking them to review the research on cannabis and consider rescheduling. Every time the HHS did not respond until forced to do so through a lawsuit and every time their response was the same: we don’t have enough research to review in order to determine if cannabis should be moved out of Schedule I. The irony was that it was the Schedule I status itself that prevented this research from happening.
- There were others who challenged the notion of cannabis as Schedule I. In 1988, Francis Young, an Administrative Law Judge for the DEA ruled that cannabis should be removed from Schedule I saying, “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.” This was in response to a 1972 (!) petition filed by NORML. He was overruled and the schedule stood without challenge…until Xavier Becerra.
- If we want to give credit for modern day rescheduling, he is the one who deserves it. Made the Secretary of Health and Human Services in March of 2021, Becerra was previously the Attorney General for weed loving California. In fact he became AG in 2017 right after California legalized cannabis. After a half a century of challenging cannabis as a Schedule I drug without success, it was Becerra who ordered his agency to review the research (with the support of Biden) saying, “There has been a lot of science that’s been collected over the years on cannabis. We have far more information now. As you know, throughout the country, many states have moved much farther than the federal government has. Even in places like Texas, you see where action has been taken on cannabis. What we’re doing is simply reflecting what the science is showing.”
- After the DHHS made their recommendation to reschedule (and who knows if Schedule III was their first choice, policy is always politics), the DEA could accept or reject their recommendation. On April 30th, 2024, the DEA agreed to the recommendation of Schedule III from the DHHS and signed by then Attorney General Merrick Garland.
- The next step would have been an administrative hearing as part of the rule making process. And this is where it stalled. Groups on both sides who felt they were excluded from testifying at the hearing sued. The settlement of the lawsuits took time, and during that pause, Biden left office and Trump entered it. Even though Trump gave lukewarm support to rescheduling during his campaign, he was all crickets once taking office…until now.
- Now he shows up with this EO telling the current AG to hurry up and get rescheduling done. Why now? Well, I assume it is for some political and likely financial gain. Maybe it’s to raise a falling approval rating, maybe to do a favor for a crony who stands to benefit from tax code changes. Maybe he drew it out of a hat. Who knows? The point is, the ball was on the .5 yard line after decades of fighting and pushing and persistence, he merely gave it a little tap.
Look, is rescheduling the final answer? Are we in the end zone now? No, not even close. Rescheduling will not prevent people from losing their jobs, housing, kids, or freedom because of cannabis use. It will not open the door for those currently incarcerated and it will not erase the collateral sanctions that plague them once they serve their time. But, as I discuss in my article, drug policy is more philosophy than science, and this is moving in the right direction, even if it is incremental and not even close to the end of the fight. And I get why people want to be excited. I have been fighting this fight for 25 years and when you are used to starving for progress, crumbs can look like a feast. So, let’s all take a breath, make sure we know how we got here, and prepare to take it all the way.
