Document Type
Article
Publication Date
2024
Abstract
In October 2022, President Biden requested that the Secretary of Health and Human Services and the Attorney General initiate a procedure to review how marijuana is scheduled under the federal Controlled Substances Act (“CSA”). The announcement was historic. After more than fifty years of federal prohibition, decades of advocacy and litigation from reform groups, and dozens of stalled efforts in Congress, a President finally decided to wield the Executive Power with an eye towards rescheduling or descheduling marijuana. But just how far does that power go? Given President Biden’s request, the question is in serious need of scholarly attention.
This Article accomplishes just that, diving deeply into the thicket of statutory and administrative law that dictates the scope of the President’s power to unilaterally reschedule or deschedule marijuana. In doing so, we conclude that the CSA’s administrative drug-scheduling procedure is broader than prior scholarship has let on. We identify several avenues for the President to move marijuana to a less restrictive schedule. The pathway to descheduling marijuana is, however, far narrower and more uncertain.
These findings are immediately relevant. They can help guide the Executive Branch as it reconsiders how marijuana is scheduled and will prove useful to courts when the Biden Administration’s eventual decision is subjected to judicial review. Indeed, while this Article was in production, the Secretary of Health and Human Services recommended that the Drug Enforcement Agency (“DEA”) transfer marijuana to Schedule III of the CSA. The DEA’s decision of whether to accept that recommendation will, inevitably, be challenged in the courts.
Publication Title
Oklahoma Law Review
Volume
76
Issue
3
Article Number
1162
First Page
517
Last Page
573
Suggested Bluebook Citation
76 Okla. L. Rev. 517 (2024)