Will wonders never cease? The federal Drug Enforcement Administration (DEA) reportedly is considering moving marijuana from the most highly restricted class of “Controlled Substances” – Schedule I – where it has resided for more than half a century, to the far-less restrictive category as a Schedule III drug.
This reclassification, if actually implemented, truly would represent a sea change in federal drug policy, which since 1970 has been defined by the Nixon-era Comprehensive Drug Abuse Prevention and Control Act of 1970, of which the Controlled Substances Act is found at Title II.
As with much federal regulatory power, Uncle Sam’s control over drugs, including “controlled substances” and all manner of prescription medications, is implied – deriving from numerous laws passed by the Congress and upheld by the U.S. Supreme Court as legitimate under the so-called “commerce power” found in Article I, Section 8 of the Constitution.
Despite the otherwise clear limiting language in that Section of the Constitution that congressional power to legislate extends only to “commerce” between states, ever since President Franklin Roosevelt’s “New Deal” in the 1930s, all three branches of the federal government have eagerly gobbled up powers clearly never dreamed of by those who wrote and ratified that document.
The final bulwark against this deluge was essentially destroyed in 1942, when the High Court found constitutional under the Commerce Clause, the federal government’s power to regulate the price of wheat grown by a farmer in Ohio (Roscoe Filburn) even though none of his product was used or sold beyond the borders of the Buckeye State.
The tortured reasoning that underpinned the Supreme Court’s decision in Wickard v. Filburn, provided a bright green light for virtually every Congress and president since then to reach into every nook and cranny of life in America without fear of being circumscribed by the courts.
In 1970 this overreach found a home in federal drug policy and with marijuana being classified as among the most dangerous drugs in the country (right up there with heroin, LSD, and MDMA or ecstasy).
Congress justified this regulatory overreach by “finding” that since some, if not most marijuana, travels in interstate commerce, it is easier to lump it all together and consider it all in the context of “commerce” between the states.
So much for the idea of a federal government of limited and defined powers.
In a California case six decades after farmer Filburn found himself in Uncle Sam’s crosshairs, Angel Raich was the victim of similar regulatory abuse. Ms. Raich used small amounts of marijuana provided free of charge for her medicinal use by local caregivers – all fully compliant with that state’s “Compassionate Use Act of 1996.”
That exercise of freedom did not sit well with Alberto Gonzalez, at the time serving as U.S. Attorney General, whose Justice Department swooped in to stop Ms. Raich notwithstanding that she acted in full compliance with California law, and despite there being nary the slightest hint of “commerce” of any sort. A majority of U.S. Supreme Court justices allowed the DEA to confiscate the small amounts of medicinal marijuana obtained by Ms. Raich and prevent her from obtaining more.
The notorious Gonzalez v. Raich decision remains the law of the land, although in recent years the feds as a practical matter have largely backed away from prosecuting cases involving medicinal marijuana if in compliance with various state laws.
Despite this policy decision not to strictly enforce federal marijuana laws in states where medicinal use is lawful, marijuana remains a prohibited Schedule I drug with no acceptable medical use.
That may change in the coming months if reports are accurate that, on April 30th, Attorney General Merrick Garland sent the White House a formal proposal to move marijuana and its essential ingredient, tetrahydrocannabinols, to Schedule III, a move that under the Controlled Substances Act the attorney general can make without congressional approval.
Such a move, long championed by libertarians and many medical groups, would be welcomed not only by marijuana users, but also by businesses involved in the marijuana trade. As a Schedule III product, marijuana-related businesses could not only engage in transactions with banks and credit card companies without fear of legal retribution, but they could lawfully claim a wide variety of tax benefits now denied them because of marijuana’s high classification.
This historic policy change will be a boon to marijuana users and businesses. Whether it bodes well for our social culture is another question altogether.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
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