Either today or later this week, the House will likely take the historic step and actually hold a vote on whether to deschedule marijuana from the Controlled Substances Act (CSA). In addition, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act would expunge low‐level marijuana offenses and impose a 5 percent federal sales tax. The bill is unlikely to get past the Republican Senate, and there are many other proposals—some with the seeming support of President‐elect Biden—that would reschedule rather than deschedule the plant. But descheduling—removing the drug from the CSA entirely—is the only sensible path forward for marijuana reform, not rescheduling—moving the drug to a different section of the CSA. Like alcohol, the federal government should have very little involvement in regulating marijuana.
The CSA separates drugs into five schedules based on the perceived danger. Schedule I has the supposed worst drugs, those that have no accepted medical uses and a high potential for abuse. That’s where you’ll find heroin, ecstasy, LSD, psilocybin, and, yes, marijuana.
Unlike drugs that are discrete, scientifically identifiable compounds, such as diacetylmorphine (heroin), MDMA (ecstasy), or LSD, marijuana is a whole plant containing a complex assortment of psychoactive and therapeutic compounds giving it a broad range of effects. Many of those substances are capable of being refined out of the plant and put into different uses, such as salves, candies, therapeutic oils, and of course smokable substances. To place the whole plant into any schedule of the CSA affects the use of every substance that is derived from the plant, whether it is psychoactive THC or therapeutic CBD or CBN.
The analogy to alcohol is apt. Schedule I drugs are those with no accepted medical uses and a high potential for abuse. Given that language, where should alcohol be scheduled if we were to try to fit it into the scheduling system? Seems like there’s a good case for it being in Schedule I. Except for odd circumstances, doctors don’t tend to prescribe shots of bourbon, and the high potential for abuse of alcohol is obvious.
But what is “alcohol,” and what would it mean if “alcohol” were put under the CSA? That word encompasses everything from Uncle Clarence’s moonshine to White Claw, from Bacardi 151 to a glass of champagne. Any reasonable regulation of alcohol would require acknowledging that a shot of 151 is not the same as a wine spritzer. Because of that wide variance, putting “alcohol” in the CSA would be absurd. The substance should be regulated on a state and local level to ensure that people can use the drug responsibly within reasonable limits for public safety.
States already regulate alcohol this way. Everclear 190, a potent spirit that is 95 percent pure alcohol, is illegal in 14 states. Other states regulate shot size, drink style, and of course what days and hours bars can be open. This type of more localized regulation makes sense for such a broadly used and diverse substance as alcohol.
And it makes sense for marijuana. Not only does marijuana have at least as much variance in product type and potency as alcohol, but it has many more therapeutic and medicinal uses. Some would say that means marijuana should be rescheduled to a lower level of the CSA that acknowledges medical uses. Schedule II, for example, contains morphine, fentanyl, methamphetamine, and cocaine, which, despite their dangers, have acknowledged medical uses.
But rescheduling marijuana would solve few of the issues that plague recreational and medicinal users in the states that have legalized, and it certainly wouldn’t solve the challenges that face the growing cannabis industry. Unauthorized possession of cocaine, despite its acknowledged medical uses, still carries stiff penalties under federal law. Similarly, if a state wishes to recognize a broad set of medicinal marijuana uses, the federal government is in no way obligated to comport itself to that state’s judgment. Finally, rescheduling, without more, won’t solve the longstanding problems with banking faced by cannabis‐based businesses.
Federal marijuana prohibition in America began as a largely unnoticed tax act in 1937. It seems clear that many members of Congress who voted for the law didn’t even realize that marijuana and cannabis are the same thing. Over the next decades, federal and state marijuana prohibition have ruined countless lives, orders of magnitude more than the lives ruined by the actual drug. It’s time to take the sensible step and get the federal government out of marijuana prohibition altogether.
This article first appeared on Cato at Liberty, a publication of the Cato Institute.