From what I have been reading, decisions about moving marijuana into a less stringent schedule than schedule 1 are in the hands of the the Attorney General with that authority granted in the Controlled Substance Act. The Attorney General has delegated that authority to the DEA Administrator. So far the DEA has not acknowledged any of the mountains of evidence of the efficacy of marijuana as a medicine. Instead they choose to fight all attempts to reschedule marijuana and ignore all evidence of marijuana’s lack of harm to society and the fact that it is overwhelmingly safer than the two most prominent recreational drugs in America, alcohol and tobacco.
In a Reason.com article written by Mike Riggs on Jan 22nd, http://reason.com/blog/2013/01/22/in-fight-over-marijuans-scheduling-appea
The Washington D.C., U.S. Circuit Court of Appeals ruled that the DEA acted according to their rules in denying a rescheduling of marijuana. The Court did not consider whether the evidence presented as to marijuana’s efficacy was relevent to the issue but that the DEA had followed its own rules in reaching its decision.
According to the appeals court, the DEA was following its own rules (there are five in all) when it claimed that petitioners for rescheduling marijuana had failed to provide “adequate and well-controlled studies proving efficacy.”
Americans for Safe Access in turn argued “that their petition to reschedule marijuana cites more than two hundred peer-reviewed published studies demonstrating marijuana’s efficacy for various medical uses, and that those studies were largely ignored by the [DEA].”
“At bottom,” the court wrote, “the parties’ dispute in this case turns on the agency’s interpretation of its own regulations. Petitioners construe ‘adequate and well-controlled studies’ to mean peer-reviewed, published studies suggesting marijuana’s medical efficacy. The DEA, in contrast, interprets that factor to require something more scientifically rigorous.”
In other words, The DEA will not reschedule marijuana unless it would meet FDA approval. That is a very unlikely scenario when considering the close ties the FDA has with the pharmaceutical industry. However the decision to reschedule marijuana seems to swing on the opinion of the DEA Administrator of what is considered “adequate and well-controlled” medical studies, and “accepted safety”. Since this authority is delegated to the DEA Administrator by the Attorney General, surely the Attorney General could take that authority back. The office of the Attorney General as well as the office of the DEA Administrator are filled by appointment by the President of the United States. Surely the President would have enough influence over those he appoints to those positions to have them reschedule marijuana, either by Executive action or just replacing them with someone who would. While this would do nothing for the millions of recreational marijuana users. It would stop the raids that deny the sick and dying the medicine they believe improves their lives (palliative and curative), and the punishment of those who supply medical marijuana in compliance with state law. Although the President does not have the authority to legalize marijuana, the responsibilities for the current raids on medical marijuana are all his.
Thanks President Obama
- (b) Evaluation of drugs and other substances
The Attorney General shall, before initiating proceedings under subsection (a) of this section to control a drug or other substance or to remove a drug or other substance entirely from the schedules, and after gathering the necessary data, request from the Secretary a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a controlled substance. In making such evaluation and recommendations, the Secretary shall consider the factors listed in paragraphs (2), (3), (6), (7), and (8) of subsection (c) of this section and any scientific or medical considerations involved in paragraphs (1), (4), and (5) of such subsection. The recommendations of the Secretary shall include recommendations with respect to the appropriate schedule, if any, under which such drug or other substance should be listed. The evaluation and the recommendations of the Secretary shall be made in writing and submitted to the Attorney General within a reasonable time. The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance. If the Attorney General determines that these facts and all other relevant data constitute substantial evidence of potential for abuse such as to warrant control or substantial evidence that the drug or other substance should be removed entirely from the schedules, he shall initiate proceedings for control or removal, as the case may be, under subsection (a) of this section.
- (c) Factors determinative of control or removal from schedules
In making any finding under subsection (a) of this section or under subsection (b) of section 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:
- (1) Its actual or relative potential for abuse.
- (2) Scientific evidence of its pharmacological effect, if known.
- (3) The state of current scientific knowledge regarding the drug or other substance.
- (4) Its history and current pattern of abuse.
- (5) The scope, duration, and significance of abuse.
- (6) What, if any, risk there is to the public health.
- (7) Its psychic or physiological dependence liability.
- (8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter. http://www.fda.gov/RegulatoryInformation/Legislation/ucm148726.htm#cntlsbb
As for the millions of recreational marijuana users, your best bet is to try to influence your Congressional leaders, or replace them with those in favor of legalization. It is very unlikely the Supreme Court would rule against Congress on the legality of marijuana. Without reasonable attempts to change Congress’ stance on marijuana the Supreme Court would be unlikely to even hear evidence.