The Reclassification of Marijuana

Episode Notes

Transcript

Robert Mikos:

Maybe now Congress can stop blaming the executive branch for holding things up. In the past, I think members of Congress have liked to blame the DEA for keeping marijuana on Schedule one. Now that they’re moving it to Schedule three, I think that puts the onus on Congress to take the next step and maybe that’ll trigger some legislation in Congress.

Speaker 2:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog name. May it please the court have two books out titled How To Get Sued and The Sled. And speaking of books, I have a new book releasing this month titled, how Would You Decide 10 Famous Trials That Changed History? And that book is also going to be a new podcast called Inpu 10 Famous Trials that Changed History. We’ll be sharing more about that here in the coming weeks, and you’ll be able to find that in May, which will soon be featured here on the Legal Talk Network. United States Drug Enforcement Agency recently announced that they are moving forward with reclassifying marijuana as a less dangerous drug. The Justice Department proposal would move marijuana from this Schedule one group, which includes heroin, LSD, Quaaludes, and Ecstasy among others to Schedule three, which includes ketamine and Tylenol with coding.

So why the shift now and what sort of impact will the reclassification of marijuana have on drug policy today? On Lawyer 2 Lawyer, we’ll be discussing the proposed reclassification of marijuana and the various changes to drug policy. We’ll take a look at the history of war on drugs, cannabis law, and what the constitutional right to an individual has when it comes to drug use. And to help us better understand today’s topic, we’re joined by Professor Robert, A. Mikos from Vanderbilt University Law School. Rob is one of the nation’s leading experts on federalism and drug law. His most recent scholarship analyzes the struggle among federal, state, and local governments for control of marijuana law and policy, which includes a first of its kind case book, marijuana Law, policy and Authority. In that vein, professor Mikos has written, consulted, testified, and lectured on the state’s constitutional authority to legalize marijuana, the application of the dormant commerce clause to state marijuana markets, federal preemption of state marijuana regulations, the political and budgetary considerations that limit enforcement of federal marijuana, ban, federal laws, enforcement on state regulation and taxation of the marijuana industry and the desirability of marijuana localism.

Welcome to the show, Rob.

Robert Mikos:

Thanks so much for having me, Craig.

J. Craig Williams:

Rob, how did you get involved in teaching marijuana law and policy?

Robert Mikos:

It was really by accident. So when I started out as a law professor, I’ve always been interested in federalism sort the relationship between the national government and the states. And when I was starting out as a law professor, there was a big case that was before the Supreme Court that was very important for federalism and it just so happened to involve state medical marijuana laws, and the case was all about defining the scope of Congress’s commerce power. It was Reish versus Gonzalez. That’s what kind of initially drew me into the field. I wrote about that decision. I wrote about why even though the Supreme Court there upheld this federal statute and its application to kind of local marijuana activities, I explained why that didn’t kill all these state medical marijuana laws. I thought that would be the end of it. I thought this was a need issue that is unique to this area.

I thought I’d move on to other things, right about other things, but as I dug into it a little bit more, I discovered that this field of law, which was still very much in its infancy at the time, this field of law just raises all sorts of fascinating cutting edge legal questions, questions about what’s the power of the President to reshape federal marijuana policy? Can the president simply order the DOJ to stop enforcing federal law? Could the president deschedule marijuana under the Controlled Substances Act? There were just all sorts of interesting legal questions that were popping up, and I discovered that there weren’t a lot of people writing about these, so I was interested in it from a scholarly perspective. I thought there’s lots of great things to be written in this field. And then I also soon discovered that law students that we were graduating, the people that we were training to be sort of the next generation of lawyers, they were ill-equipped to kind of handle the questions that were being posed in this field. They really couldn’t advise clients because they hadn’t encountered these legal questions and these legal doctrines in law school, and that’s really why I started teaching the class. It was intellectually interesting to me. I think the students find it very interesting, but there was also a big need for it in the field to get people up to speed on the barrage of legal questions that’s facing the industry.

J. Craig Williams:

We talked about the dormant commerce clause in the introduction, and to be honest, it’s been so long since I’ve been in law school that I almost forgot what it is.

Robert Mikos:

Probably most people who have gone through law school kind of put it back in the recesses of their mind and hope never to encounter it. It is this kind of obscure, implied doctrine of constitutional law that says, in a nutshell, the states can’t unduly impede interstate commerce in goods or services, and it’s relevant in this field because the states have done exactly that. We have these 38 or 39 states that have legalized marijuana either for medical and or adult use, but every one of ’em, oddly says, you can’t bring marijuana in from another state. You also can’t ship it outside the state, even though it’s legal in a place like Colorado to grow and sell marijuana there. If you’re licensed, you can’t bring it in from another state and resell it, and you can’t ship any of that Colorado grown product out of state. If this were any other product, if we were talking about oranges or avocados or beer, that would be blatantly unconstitutional.

States thought they could get away with it because the federal government banned all commerce in marijuana. But that assumption is being challenged now in a lot of litigation. First in some cases where states say, if you want to get a license to grow and sell marijuana here, you have to be a state resident. Several of those restrictions have been successfully challenged in different states, Maine, Michigan, Missouri, and a few other places, and I think that the next step is going to be applying that dormant commerce clause to challenge state laws that ban the importation or exportation of marijuana as well.

J. Craig Williams:

How does the federal reclassification play into this? I understand it’s being considered to be reclassified from a Schedule one narcotic to schedule three. Yeah,

Robert Mikos:

So that’s big news on the federal front because under the Controlled Substances Act, all drugs that are subject to abuse, which kind of means all drugs that might be addictive, that might be psychoactive, they are subject to controls under the statute. The statute assigns them to one of five schedules through numeral one through Rome numeral five, and scheduling kind of determines how tightly the drug is controlled. So if you’re on schedule one, you can only possess and use that drug for research purposes. If you’re on the lower schedules, you can use it for therapeutic purposes as well. Congress, when it passed the Controlled Substances Act back in 1970, it put marijuana on Schedule one, the most tightly controlled schedule right alongside heroin, LSD and a bunch of other taboo substances Advocates have been pushing really for the last half decade or half century, advocates have been pushing to reclassify marijuana to move it to one of the lower schedules, hoping to open access to the drug. This is the first time that the Drug Enforcement Administration, that’s the federal agency that’s responsible for these administrative scheduling decisions. This is the first time that the agency actually seems to accept that view and thinks that marijuana doesn’t belong on Schedule one, but should be moved down to Schedule three. So it’s a big historical development under federal policy.

J. Craig Williams:

What does it mean to be on Schedule three now? It’s not tightly controlled. I understand that some of the universities now are hopeful that they can do more research,

Robert Mikos:

So I think the effects are going to be maybe more muted than people at first realize. Part of that is because of the reasoning that the DEA seems to have used to justify the change of schedules. So Schedule three drugs, they’re still regulated by the federal government. It’s not as if that means they, they’re deregulated and anybody can grow, sell, use it, and so on. Those regulations are less strict than the ones that apply under Schedule One. But you still, for example, if you want to grow or sell this drug, you have to get registered with the DEA basically means you have to get a license from them. You can only sell it to other people who are registered, other licensees out there. You have to follow federal rules regarding tracking and inventory and security and so on. Those are going to be pretty tough to meet, but there are obviously examples of Schedule three drugs that companies lawfully cell that you can find in a CVS or a Walgreens.

Think of Ketamine or Tylenol with codeine. Those are two good examples of Schedule three drugs that are lawful to get and lawful to sell. But there’s another problem that’s lurking out there. Rescheduling a drug under the Controlled Substances Act doesn’t mean that it’s approved by the FDA, and it’s clear that marijuana is still not an approved drug, and all drugs are regulated not just by the CSA, but marijuana is also regulated by the Food Drug and Cosmetic Act. And so because it’s not an approved drug and even after rescheduling, it would remain an unapproved drug, it would still be unlawful pursuant to that other statute, the Food Drug and Cosmetic Act. It would still be unlawful to sell marijuana in the United States. The impact of this is going to be somewhat muted. It might open the door a bit for research because Schedule One drugs are subject to lots of controls that researchers have to abide by. They won’t have to worry about those quite as much under Schedule three. So it might open the door to some more research might open the door for some more people to use the drug without worrying about violating federal law. I think it’s going to have less of an impact on really the suppliers of the drug because they’ll have to worry about all those regulations under the CSA that apply to Schedule three, but they’ll also have to worry about that food Drug and Cosmetic Act

J. Craig Williams:

Still not something you should be flying with and taking through TSA.

Robert Mikos:

That’s a possibility. I mean, that’s one of those open questions. Can you actually, if you have a prescription for it, it wouldn’t be unlawful under the CSA for somebody to possess this. And the interesting thing is, as far as I’m aware, it’s not unlawful to possess an unapproved drug. So flying through TSA and going through TSA security, that may be something that changes. You might be allowed to bring the drug on a flight with you if you have the necessary paperwork. Similarly, if you’re a patient of the Veteran’s Administration, maybe now you can get your VA physician to recommend it to you in one of these medical marijuana states. It’s just that if you’re a supplier, you can’t be shipping this drug on UPS or FedEx because the Food Drug and Cosmetic Act, again, it bars the sale of unapproved drugs.

J. Craig Williams:

What would it take for the federal government to openly approve marijuana for recreational use in the United States? How far would it have to go?

Robert Mikos:

It would take an act of Congress. That much is absolutely clear. So the Controlled Substances Act, it doesn’t tolerate any recreational use. So even if you were to move this farther down the line, let’s say to Schedule five, those are over the counter drugs still, technically speaking, they’re only supposed to be used for medical purposes. Similarly, under the Food Drug and Cosmetic Act, that statute would probably continue to regulate the sale of products that have marijuana or marijuana ingredients in them, even if they were being sold for recreational purposes. So we’d probably need an act of Congress to come out there and declare that there’s going to be a special set of rules to govern marijuana that’s different than the rules that govern ketamine and Tylenol with codeine and other controlled substances. Congress has done that for alcohol and tobacco. It could do the same thing for marijuana, but I really think it would take an act of Congress.

J. Craig Williams:

Well, Rob, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer. Lawyer. I’m joined by Professor Robert Mikos from Vanderbilt University Law School. We’ve been talking about the rescheduling of marijuana from Schedule one to Schedule three, and you said right before the break we talked about taking an act of Congress to legalize marijuana as it did with removing prohibition in the use of alcohol. Do you think we’ll oversee that in our lifetimes?

Robert Mikos:

I think so. Although this is one of those issues where five years ago if you had asked me, I would’ve said, oh yeah, within five years we’ll have an act of Congress approving of this. It seems like the writing is on the wall. It’s hard to predict when it will happen. This is one of those issues. If you look at public opinion polls, there is overwhelming majority support for outright legalization of marijuana. 70% of American adults now support legalization, not just for medical use, but for any adult use, any recreational use. I can’t think of any other issue that gets that much majority support, and it’s not confined. I mean, obviously with those numbers, it’s not confined just to Democrats or Libertarians. It has kind of broad-based appeal. So I think this is going to happen in Congress. I’m confident it’ll happen in Congress. It is just a question of when. I’m surprised it’s taken as long as it has, but I think maybe now that the DEA has rescheduled marijuana, maybe now Congress can stop blaming the executive branch for holding things up. In the past, I think members of Congress have liked to blame the DEA for keeping marijuana on Schedule one. Now that they’re moving it to Schedule three. I think that puts the onus on Congress to take the next step and maybe that’ll trigger some legislation in Congress.

J. Craig Williams:

You said you’ve seen a shift in the last five years. What do you attribute the shift to pandemic age?

Robert Mikos:

I don’t think it’s been so much a shift. I mean, this has been a steady increase in public opinion. I guess five years ago, I would’ve told you within five years. So by now, Congress would’ve passed some legislation. But obviously that hasn’t happened. Even though support for marijuana legalization continues to end up five years ago, it was still a pretty high level, not 70%, but probably in the low sixties at that point. I think it’s just now, again, it’s just a matter of time, but I’m loathed to make any of those predictions anymore. About five years from now. We’ll definitely have this. I don’t know. I’m surprised it’s taken this long, but I am confident it’s going to happen.

J. Craig Williams:

Have we seen any type of bill being introduced in Congress to legalize marijuana?

Robert Mikos:

We’ve seen lots of proposals, but they rarely go anywhere. I’d kind of lump ’em into two different categories. So one category just tries to tackle individual discreet problems. They’re now caused by federal prohibition without removing federal prohibition. So for example, companies in the state licensed marijuana industry, they have a hard time getting banking right now because banks don’t want to deal with an industry where all of its proceeds are tainted. It’s engaging in federal crimes all the time. Banks don’t want to bank the industry. So there’s a proposal out there in Congress that’s been out there for six or seven years now that would provide a safe harbor to banks, wouldn’t legalize marijuana, but would tell them, we won’t punish you. We’ll make it impossible to punish banks for banking. The industry, the other set of proposals are more ambitious and they really would legalize marijuana federally, and there are different ways of doing that. But they would try to address all the different problems that now plague the marijuana industry in one fell swoop rather than dealing with them one at a time.

J. Craig Williams:

Before we jump ahead and take a look at what reclassification is going to mean and potentially the legalization of marijuana, let’s take a look back first at the War on Drugs and Reefer Madness. I mean, we’ve come a long way.

Robert Mikos:

We certainly have. I mean, when the CSA was passed, marijuana was commonly demonized. People blamed it for all sorts of societal ills, claimed it. It didn’t just hurt the user that claims that it was highly addictive, caused psychosis and so on, but also claims that it caused people to engage in crimes, that it caused people to go out and use other harder drugs like heroin and so on. When the CSA was passed again back in 1970, only about 10% of Americans at that time supported legalization for all adult use. So the views of marijuana, both its harms and its acceptance by society have changed dramatically. I mean, we have seen not much change in federal law over that time, but we have certainly seen a big change and shift in the way that states regulate the drug. As I mentioned, there are some 30 states that now legalize medical use of marijuana, and there are more than 20 states that now have legalized recreational marijuana as well. That’s a shift that’s really happened in the last quarter century.

J. Craig Williams:

Do you think the war on drugs was at all a failure or a success? How would you classify it?

Robert Mikos:

Yeah, it’s tough. I don’t know what the world would’ve looked like without sort of the intervention of the war on drugs. So it’s tough to say that it’s complete failure. Tough to say. I think you’d have an even harder time saying it was a success, but certainly the world would be a different place right now if we hadn’t had the war on drugs. I think it fair to say that it probably didn’t do a very good job of curbing marijuana use if that was the objective, that it failed to meet that objective because even at the height of the war on drugs, looking back in the early 1990s, late 1980s, under the Bush and Reagan administrations, you still had widespread use of marijuana. There were 18 to 20 million people using the drug regularly and really outside the auspices of any established medical marijuana program. So really none of it under medical supervision or very little of it. So if you try to gauge the war on drugs by how good of a job did it do at stopping people from obtaining or using this drug, at least with respect to marijuana, I’d say it was a failure.

J. Craig Williams:

Right. Well, Rob, it’s time for another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with Professor Rob Mikos from the Vanderbilt University Law School in Tennessee where it’s not legal for the use of marijuana in any sense, how is it to teach marijuana law in a state where it’s not legal?

Robert Mikos:

It would make it hard to do any field trips or anything like that? Certainly in Tennessee, although we do have the weird hemp is now legal here as it is in lots of other places. So we do have hemp being sold in lots of different places, and that’s obviously very closely related to marijuana, but it means that it’s easy. Here in Tennessee, students are still familiar with prohibition, maybe in a way that they might not be in California or Colorado. I think they’re more exposed to the prohibition mindset here, but otherwise, people are open to having conversations about this. My students are going to practice all over the country, lots of them in places like California and Illinois and New York and Florida that have more liberal marijuana laws than Tennessee does. So it’s really not as strange as it might seem at first glance.

J. Craig Williams:

Well, you’re also a law professor and although our case law and constitutional law is replete with law on life and liberty, it doesn’t have much to say about the pursuit of happiness. How does the legalization of marijuana and the use of drugs fit into that aspect of the Constitution, if at all?

Robert Mikos:

It’s interesting because our statutes, our drug statutes, they all privilege medical use. If you can fit something into medical use under the CSA, for example, then it’s okay and the government will attach benefit to that. But if all you do is you say, Hey, this makes me happy, these federal statutes, they don’t look at that as a benefit. In fact, in kind of a perverse way, they look at that as a harm because they say, well, you’re just taking this to make yourself happy. That means you’re abusing the drug because you’re not using it for medical purposes, and you’ve got this strong incentive to not use it for a medical purpose, but to use it for some other purpose. So it’s kind of a weird worldview, and there’s not a lot of common law out there that recognizes a right to use drugs. Certainly outside of the medical context for recreational purposes, there is interestingly, an old case from Alaska applying that state’s constitution, Alaska’s constitution, like a lot of other states, it has an explicit provision dealing with privacy, establishing a right to privacy.

And in Alaska Supreme Court back in the early 1970s found that Alaskans have a state constitutional right to use marijuana in their own homes. It’s part of that right to privacy federal courts. About that same time, that’s the end of the Warren Court era. They were really clamping down on the recognition of new rights, and I think for the next several decades, they resisted the notion that you had a constitutional right to use something like marijuana or psychedelics or something like that just because it made you happy or for recreational purposes. They even rejected the idea that you might have a constitutional right to use those drugs for medical purposes, which is usually a more sympathetic argument. There are some folks, Mason Marks is a great law professor and a physician trying to argue that maybe the courts have overlooked something that maybe it’s not just a right to be happy, but sort of freedom of thought because some types of drugs like LSD might change the way you think about the world, and if you prevent people from using those, you are taking away part of their actualization, part of their ability to fulfill their full potential.

But those kind of new constitutional law arguments haven’t been tested yet, but we may see another go at this in the next few years.

J. Craig Williams:

So is it safe to say that there is no constitutional case law out there on the right of happiness?

Robert Mikos:

I wouldn’t say that, but there’s certainly nothing out there that says you have a right to use any drug because it makes you happy.

J. Craig Williams:

Well, that somehow makes sense. Well, Rob, we’ve just about reached the end of our program, so it’s time to invite you to share your final thoughts and provide your contact information for our listeners to reach out to you if they have more questions on this subject and perhaps take one of your classes.

Robert Mikos:

Oh, absolutely. So the only thing I’d add is this push for rescheduling that’s been in the news over the last few weeks. I think it’s going to have less of an impact than a lot of people realize. I think the takeaway from that really isn’t to get mad at the Biden administration for not doing enough. I think people need to recognize that the power of administrative agencies to unilaterally reshape federal marijuana policy is really limited, and it was limited by Congress. Congress gave them only limited authority to revise federal marijuana policy. And so I would suggest that if this is all unsatisfying, if you’re not satisfied with what the Biden administration is doing here, and there are lots of reasons not to be satisfied, really the only actor that can do anymore is Congress, and it’s really up to Congress at this point to clear the air and to try to more fundamentally reshape federal marijuana policy.

J. Craig Williams:

Great. Well, Rob, as we wrap up, it’s been a pleasure to have you on our show today. Thank you very much.

Robert Mikos:

Thanks for having me, Craig.

J. Craig Williams:

Well, here’s what my thoughts are about today’s topic. I think Professor Mikos is correct that there’s not going to be a significant difference in this change from schedule one to Schedule three. You still can’t move it from state to state. You can’t fly with it, and it’s not approved for use on a federal basis at all other than perhaps through researchers and some other highly controlled instances through pharmacies. So like Professor Michael said, if you want change in marijuana law, it’s time to talk to your congressperson. And that’s it for Craig’s Ran on today’s topic. Let me know what you think. If you like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

Speaker 2:

Thanks for listening to Lawyer 2 Lawyer produced by the broadcast professionals at Legal Talk Network. Subscribe to the RSS feed on legal talk network.com or on iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network. It’s officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.