Cannabis is now legal, under state law, in two states. It is available by prescription in quite a few. Yet federal law still bans it under all circumstances. It is listed under Schedule I of the Controlled Substances Act, along with heroin, LSD, and other drugs that are flat-out banned. Thus federal agents, especially the DEA, can bust anyone under federal law who is using it legally under state law.
When President Obama was first elected, he invited comments from the public as to what his agenda should be. Legalizing marijuana was high on the list (pun intended). Yet he has steered the opposite course. Dispensaries in California have been busted, and US Attorneys are warning people that just because their state legalized it, that won't protect users against federal pot busts.
I'm frankly not sure what the President is smoking, but his enforcement of the Controlled Substances Act has been far more enthusiastic, shall we say, than many of his supporters expected. While the law still exists, he has done nothing to change it. Public opinion now favors legalization, at least under some circumstances. And Obama's supporters are not the kind of social-conservative bluenoses who hate it on principle, nor the kind of racists who originally proscribed it because it was seen in the 1930s as a "negro drug". He's appealing to people who wouldn't support him anyway. But the White House has been afraid or unwilling to make any moves, and we're now facing a crisis of federalism where the liberal side, for once, is siding with states. That doesn't sound like a great idea.
But there is an answer that is so limited in scope, so hyper-cautious, that there is really very little risk to it. It isn't the long-term answer, but it is about 50 years too late. It would make a great gift to America to have it in his State of the Union Address next month.
The President should simply propose to Congress that Cannabis be moved from Schedule I to Schedule II.
Schedule II is how the Controlled Substances Act treats drugs considered to be highly addictive and dangerous, but with at least some medical value. (Schedule I theoretically means that there is no medical value. The Supreme Court has already held that the law does not have to comport with reality in making that judgment.) Cocaine, hardly safe, is Schedule II, along with Morphine. Oxycodone (Rush's favorite), and dozens of other things that really don't belong in your supermarket's health and beauty aids section.
So if real cannabis is moved to Schedule II, then medical uses become legal, but under tight restrictions. Prescriptions can't be refilled, though they can be written for 90 days' supply. Prescriptions are subject to tight record-keeping. So dispensaries can't act casually about it, but licensed distribution is carefully monitored and restricted. It's a long way from legalization and frankly still doesn't let state laws work right.
But Schedule II makes it possible for someone to possess a substance legally, and makes writing prescriptions legal under federal law. So doctors don't have to worry about their own status, and mere users don't have to worry about busts. The distribution chain may still, in practice, end up operating outside of federal law, but there could at least be a fully legal supply. Recreational use, of course, would remain banned, though enforcement agents would have to have reason to think that it was not being used medically.
And then, when the sky doesn't fall, it can be moved down the chain to Schedule III or IV, where it's basically just a prescription drug.
I'm not writing this for my own personal use. I live in a state that just voted to legalize medical use last month. I have no intention of using it, either medically or recreationally -- I don't like it. Ironically, I have a medical condition that is near the top of everyone's list for using cannabis, but other medications are working well for me, better than mary jane is ever supposed to do. I'm more concerned about the societal costs of this idiotic policy, wherein the courts are kept busy with marijuana offenses, where the prison-industrial complex is fed harmless offenders, where extra enforcement against African-Americans is a tool of disenfranchisement, and where even fully legitimate medical use is discouraged by possible sanctions against practitioner and patient alike.
If President Obama did make the call this year, he may find an interesting coalition to back him. Many Republicans claim to be libertarians, and given the popularity of medical marijuana, they and others who talk about "small government" might have to put their votes where their mouth is and vote to save the government money by supporting the move. A few ConservaDems may vote against it in obeisance to a dying political calculus of "moderation" or maintaining cultural distance from "hippie freaks", but they will likely be outnumbered. I see it as a win-win for the President and Congress. And there aren't many of those this season.