The Argument to Reassign Pot’s Drug Classification

Original Article

The United States is a nation governed by law at the federal, state and local levels. Sometimes these laws differ with each other. That’s where the great principle of federalism comes in. Federalism permits state laws to be in conflict with each other, and even with the federal government. But that’s OK. The sometimes messy business of federalism permits different locales to try different solutions to vexing problems, allowing the states to act as the “test tubes of democracy.”

We see federalism in action most vividly today surrounding the controversy over medical marijuana. Ten states have either legalized cannabis for medicinal use or permit a medical purpose defense against prosecution. Their actions do not force other states to go along.

But federalism also means that the federal government can’t be compelled to accede to the state’s laws, either, and indeed, when federal and state laws conflict – as currently it does in states that have legalized medical marijuana – both federal and state laws may operate at the same time. Thus, the Supreme Court of the United States has twice ruled that the federal government is entitled to enforce its total ban against all marijuana possession and consumption where such use is statutorily authorized.

And that’s exactly what the Drug Enforcement Administration and Department of Justice have done under Presidents Bill Clinton and Bush. People using and distributing marijuana for medicinal use have been prosecuted and convicted – even in states like California, where it is legal. The upset caused by federal law enforcement actions has made medical marijuana an issue in the current presidential campaign, with candidates increasingly being asked by reporters and medical marijuana activists whether they will promise to call off the DEA raids.

According to Granite Staters for Medical Marijuana most of the Democrats, including Hillary Clinton, Barack Obama and John Edwards, have promised to call off the dogs. The leading Republican candidates, including Rudy Giuliani and Mitt Romney, have refused to so pledge, worrying, as John McCain put it in also rejecting the request, that marijuana is a “gateway drug.” (Fred Thompson did not answer the question.)

But this is both the wrong question and the wrong solution to the controversy. The problem isn’t the DEA raids. They are a symptom. The real illness, if you will, is the Federal Controlled Substances Act, passed in 1970, which explicitly lists marijuana as a “Schedule I” drug. This means that under federal law, marijuana has a “high potential for abuse” and “no accepted medical use in treatment in the United States.” Because marijuana is listed under Schedule I, doctors may not legally prescribe it, and the federal government can ignore state medical marijuana laws.

People can debate marijuana’s potential for abuse, but it is increasingly clear that cannabis has definite medicinal benefits. Studies and abundant anecdotal evidence demonstrate that marijuana can stimulate the appetites of people with AIDS and cancer, reduce nausea in chemotherapy patients, and help people with such debilitating conditions as multiple sclerosis, diabetes and glaucoma. And the American people know it: Polls show support in the 70 percent range for medical marijuana.

The good news is that just because marijuana is currently on Schedule I, doesn’t mean that it has to stay on Schedule I. The classification can be changed in two ways: Either by the DEA – a highly unlikely course – or by legislation. Indeed, Congress could pass a law tomorrow listing marijuana under Schedule II of the controlled substances law. This means that marijuana would still be considered a drug with “a high potential for abuse” but one that also “has a currently accepted medical use.”

This would hardly be a radical move. It would merely allow doctors to prescribe cannabis according to the same rules currently permitted for far stronger and addicting drugs such as morphine, opium and cocaine. Moreover, and here’s a bitter irony, Marinol – the synthetic version of marijuana (which many patients contend does not work as well as the real McCoy), is listed as a Schedule III drug, meaning it has less of a “potential for abuse” than drugs on Schedule I or II.

Given these facts and the high public support for marijuana as medicine, one would think that the Democratic Congress would be galloping to reclassify marijuana into either Schedule II or III. But you can hear the crickets chirping: Even though most of the Democratic presidential candidates are currently in the U.S. Senate or House, there is no bill pending to reschedule marijuana. Moreover, while there is discussion among medical marijuana supporters about introducing a bill of some sort, past proposals have not attacked the heart of the problem, which is the Schedule I classification.

To be sure, reclassifying marijuana would be resisted. But this isn’t because opponents are heartless. They worry that marijuana promoters are cynically using the medicinal issue as a subterfuge for outright legalization. This is undoubtedly true in some quarters, but so what? If morphine and cocaine can be prescribed without being legalized as an intoxicant, why can’t marijuana?

Opponents are also concerned that legitimizing medical marijuana would increase abuse. But it is the Schedule I listing that actually forces medical marijuana to be distributed through a semi-anarchic system in which doctors write notes, instead of properly regulated prescriptions, and patients pick up their drug from pot “clubs” instead of pharmacies.

This is a prescription for chaos. “None of us would have advocated for the current model of distribution,” Allen St. Pierre, the executive director of the marijuana legalization advocacy group the National Organization for the Reform of Marijuana Laws, told me. “The government’s actions have led to the law of unintended consequences: People are literally getting cannabis for writer’s block.” The best way to prevent such shadow legalization is to change the law and thereby cut medical marijuana off from the broader advocacy movement.

This much is sure: Marijuana’s Schedule I status breeds disrespect for government, forces the DEA to waste resources raiding the homes of sick people, leads to chaotic distribution schemes, and prevents reasonable medical testing to see which maladies benefit – and which do not – from marijuana use. Worse, the stigma of federal illegality deters some sick people from seeking a drug that could help them feel better.

So the time has come to put the presidential candidates on the hot seat. Merely asking whether they will halt the DEA raids allows them to expediently wiggle past the real issue, and indeed, seeks a promise from a future president to violate his or her oath of office by pledging not to enforce valid federal law.

What we really need to know is whether the next president will remove marijuana from Schedule I classification. That would help sick people, remove the issue of medicinal use from the broader debate over legalization, and bring the federal law in alignment with empirical realities.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.