How cannabis could become legal in the United States

How cannabis could become legal in the United States

It feels like we’re closer than ever. Advocates have been fighting for years to legalize cannabis in the US, and the ball is already rolling — eleven states have currently legalized for recreational use, and 33 states have some kind of medical use available. Cannabis is still illegal on the federal level, as a Schedule 1 controlled substance under the Controlled Substances Act of 1970, though the Rorabacher-Farr Amendment (which must be renewed every year) keeps the federal government from interfering in medical cannabis state laws, and the Hemp Farming Act of 2018 made hemp legal (and hemp and cannabis come from the same plant, essentially).

So we’re close. But how could marijuana actually become legal in the United States? Here’s four ways that we could finally, after all of these years, see cannabis become federally legal again. And we’ve even given each one a likelihood score, so you can see for yourself just how close we are to having legal cannabis in the US ever since it was banned back in 1970.

Congress passes a law

This is the way you heard about the laws working in school — someone in Congress proposes a law with a bill, the two houses of Congress vote to approve it (or not), and then the bill goes to the President to sign or veto it. The US House currently has a bill in place to decriminalize cannabis, but it needs to go through committee, and then be approved by both branches of Congress, the House and the Senate. Right now, Democrats hold the House, and while the legalization of cannabis has broad appeal across the board politically, Republicans hold the Senate, and they’re not inclined to agree with anything that Democrats propose.

Still, cannabis is politically popular at the moment, and so if the Democrats do pass a bill in the House, Republicans could be politically pressured to approve it (if they felt there was a chance it would help them in upcoming elections). If Republicans do approve the bill in the Senate, it’s extremely likely the President would sign the bill into law (as a Republican, he shares priorities with his fellow party members in the Senate).

Likelihood: 3/5. This is probably how cannabis will legalize eventually (there will be such support for the drug that a law will sail through and politicians will all pat each other on the back for doing something that should have been done years ago), but the current battles in Congress are so fervent that it’s very unlikely that one side or the other will compromise enough to move forward. If the Democrats win the House and the Senate in 2020, then it’s much more likely that they’ll be able to pass a legalization bill, but while the parties are so split, it’s unlikely that any major federal moves on cannabis will happen.

States’ rights hold up

This is less of a landmark move, and more of just a continuation of where we are right now. Currently, states have voted to allow the drug within their own boundaries (usually on a city-by-city or county by county basis), and the federal government has pretty much agreed with this situation — there are currently laws on the books to keep the federal government from interfering with state laws on medical marijuana, and in 2013, the Cole Memo from US Deputy Attorney James Cole stated that the federal government wouldn’t interfere with cannabis made legal by state laws (most statements since then have generally upheld the Cole Memo, though there are exceptions). President Donald Trump has recently reaffirmed the stance that states’ rights should hold in place, saying that there’s no plans for the federal government to interfere with state cannabis laws.

So the idea here is that the federal government would hold its current stance, more and more states will pass medical and recreational cannabis laws, and eventually, cannabis would become legal across the country, but under state rules.

Likelihood: 4/5. This is essentially already happening right now. The one hitch is that there are some protections that cannabis might need that can only be granted by the federal government: Interstate commerce, for example, is definitely overseen by the federal government, and not getting that protection has hamstrung cannabis companies in the US, who can’t currently use federal banks to build assets, or can’t send products or profits across state lines. Even if all of the states pass laws legalizing cannabis to a certain extent, the federal government will probably still need to make a move to protect the industry on the federal level, either with a new law or by changing policies in some way. And speaking of that...

The DEA or the FDA changes policy

While the Controlled Substances Act of 1970 created a list prohibiting the use, manufacture, and distribution of certain substances, ownership of that list technically belongs to the Drug Enforcement Administration and the Food and Drug Administration (the DEA and the FDA). Schedule I controlled substances (where cannabis currently sits) are described as 1) having high potential for abuse, 2) having no currently accepted medical use in the US, and 3) having a lack of accepted safety for use of the drug under medical supervision.

It is possible that the DEA and the FDA could change their policy, decide that cannabis no longer fits those requirements (deciding cannabis’ potential “abuse” isn’t that harmful, that there is a medical use for cannabis in the US, and that the current structures under state law do provide acceptable safety), and remove cannabis from the Controlled Substances Act. Because Congress wrote the law itself, it’s true that Congress could disagree with the policy change and otherwise relist the drug, but because legalization is so popular in the US, they likely wouldn’t do so (and most members might support the change anyway). Removing the drug from the list wouldn’t make it legal, but would essentially decriminalize it, and keep the federal government from going after the drug within US borders.

Likelihood: 1/5. This is probably the least likely of these scenarios — the DEA and the FDA have never tried to set policy like this, and most people at both agencies would probably agree that just changing policy in this way doesn’t align with the current cultures and precedents in place. But it’s possible — the FDA has already made a statement about CBD (which is a compound found in cannabis), and even the DEA has opened up regulations recently to allow more research around cannabis (and of course removing cannabis from Schedule I would open up lots of resources for that organization to work elsewhere). So it’s unlikely, but not impossible.

And of course this scenario also becomes more likely if there’s movement elsewhere — if Congress passed a law, the DEA and FDA would need to sort this issue out anyway (the FDA would probably have to set up a structure to approve or rule on cannabis’ medical claims, as it says it’s already preparing to do with CBD). The DEA and the FDA currently are more likely to follow Congress’ or the President’s lead, but they do potentially have the power to change policies and help make legal cannabis happen.

Executive order

Sure, this is a more outlandish path to cannabis legalization, but stick with us on this one: Executive orders are rules, signed by the President alone, to manage operations of the federal government. They used to be a more obscure, bureaucratic power, but recent presidents (including George W. Bush, Barack Obama, and Donald Trump) have used them in a way that expands their purview. Trump famously used an executive order to try and ban citizens of seven Muslim-majority countries from entering the US, though that order was struck down by the federal courts before it was upheld by the Supreme Court.

So there’s a lot of wiggle room in executive orders, and technically, there’s nothing stopping Donald Trump from passing an executive order to direct the federal government to decriminalize or even legalize cannabis for use and sale within US borders. In fact, potential Democratic candidate Bernie Sanders has already promised that if he’s elected in 2020, he’ll use an executive order to legalize cannabis.

If the President did sign such an order, however, it could end up throwing a wrench in legal cannabis policy. It would raise the larger question of just how much power executive orders have — the President would have essentially written law on his own, and that is (traditionally) outside the scope of executive orders. The order would likely end up in a court battle, not about cannabis, but about separation of powers in the federal government. And the order would also leave the federal government without a clear path to implementing legalization — an order likely wouldn’t lay out any structure for legalization, or build in any policies for licensing or standards.

Likelihood: 1/5. For his own ego’s sake, Donald Trump might get a thrill out of being the person to legalize cannabis in the US, and it would certainly give him some cheers (if confused cheers) from the legalization movement (which is mostly made up of his opposition party). But it wouldn’t be the most insane thing he’s done in office, for sure. If an executive order did come through legalizing cannabis, Congress would probably be more interested in deciding just how powerful executive orders are meant to be than actually arguing against the decision.

These certainly aren’t all the ways that cannabis could be legalized, but they’re probably the most relevant and likely at our current situation. If you think other ways are more likely (or you can think of any other scenarios, no matter how likely), send them along and we’ll add them in here.

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