# Obama thinks marijuana should be legalized, what can he do about it before 1/20? **URL:** \ **Category:** Great Debates\ **Created:** [November 30, 2016, 9:45pm UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492 "2016-11-30T21:45:53Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [November 30, 2016, 9:45pm UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/1 "2016-11-30T21:45:53Z")
[Recent Rolling Stone interview with Obama (summary)](http://www.rawstory.com/2016/11/obama-regulate-marijuana-like-cigarettes-alcohol/) [Full interview](http://www.rollingstone.com/politics/features/obama-on-his-legacy-trumps-win-and-the-path-forward-w452527) > [@](#): > > Obama, in an interview with Rolling Stone published Tuesday, said regulating marijuana is a much smarter way to handle the issue that continuing to treat it as a Schedule I drug. > > … > > “It is untenable over the long term for the Justice Department or the DEA [Drug Enforcement Agency] to be enforcing a patchwork of laws, where something that’s legal in one state could get you a 20-year prison sentence in another,” Obama said. What I don’t get is that this seems to be an executive branch issue. The DEA, which is responsible for drug classification and which has been keeping it at Schedule I erroneously for decades, reports to the DoJ. The DoJ reports to the POTUS. Right? Can’t he just issue an executive order before he leaves office to force them to reschedule it? Is the only reason he hasn’t done so because it would just be too bold a move and he’s worried about “tarnishing” his legacy? I mean, he really doesn’t have that much to lose. Given that pot legalization is on an inevitable snowball trail, it could very well paint his legacy quite favorably in future history. ---
**Author:** ![buddha\_david](https://avatars.discourse-cdn.com/v4/letter/b/ee7513/32.png) [@buddha\_david](https://boards.straightdope.com/u/buddha_david)\ **Post date:** [November 30, 2016, 11:14pm UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/2 "2016-11-30T23:14:14Z")
> [@Rigamarole](#): > > The DEA, which is responsible for drug classification and which has been keeping it at Schedule I erroneously for decades, reports to the DoJ. The DoJ reports to the POTUS. Right? Can’t he just issue an executive order before he leaves office to force them to reschedule it? The President does not have the right to unilaterally change the law. The best Obama can do – and in fact he has already done so – is to instruct the DEA to _not_ enforce federal drug laws in states where medicinal/recreational marijuana has been legalized, as long as they are conforming to state law. This directive can easily be overturned – and probably will be – by his successor. There are only ways to permanently change the legal status of marijuana on a federal level: (1) Act of Congress, i.e. new legislation. Unlikely in the extreme, although that hasn’t stopped some legislators from trying. The [Respect States’ and Citizens’ Rights Act of 2015](https://www.govtrack.us/congress/bills/114/hr3629), sponsored by Rep. Diana DeGette (D-CO), is the most recent attempt. (Two identical bills, submitted in 2012 and 2013, died in committee.) Note that this particular legislation does not propose to legalize marijuana directly, but instead would give precedence to state law over federal law. (2) Petition the DEA to reschedule marijuana as Schedule II or lower. This, too, has been attempted numerous times. [The most recent petition, as of August 2015, was denied](https://www.washingtonpost.com/news/to-your-health/wp/2016/08/10/u-s-affirms-its-prohibition-on-medical-marijuana/) – however, the DEA did express its willingness to expand the availability of marijuana for scientific & medical research, which at least is something. ---
**Author:** ![up\_the\_junction](https://avatars.discourse-cdn.com/v4/letter/u/f1d935/32.png) [@up\_the\_junction](https://boards.straightdope.com/u/up_the_junction)\ **Post date:** [December 1, 2016, 12:08am UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/3 "2016-12-01T00:08:25Z")
It’s an important signal to send - a President thinks the War on Drugs is a bit more nuanced than previously advertised. ---
**Author:** ![Ethilrist](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ethilrist/32/4604_2.png) [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)\ **Post date:** [December 1, 2016, 12:35am UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/4 "2016-12-01T00:35:53Z")
The good news is that the next president along can’t do anything about the states that have legalized it. The bad news is that whoever ends up as Attorney General might not feel bound to honor the promise to not prosecute marijuana cases in those states. ---
**Author:** ![DigitalC](https://avatars.discourse-cdn.com/v4/letter/d/ebca7d/32.png) [@DigitalC](https://boards.straightdope.com/u/DigitalC)\ **Post date:** [December 1, 2016, 12:51am UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/5 "2016-12-01T00:51:32Z")
Obama had eight years to treat marijuana like alcohol and cigarettes, it’s a bit late now. ---
**Author:** ![ganthet](https://avatars.discourse-cdn.com/v4/letter/g/9de0a6/32.png) [@ganthet](https://boards.straightdope.com/u/ganthet)\ **Post date:** [December 1, 2016, 12:55am UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/6 "2016-12-01T00:55:40Z")
> [@Ethilrist](#): > > The good news is that the next president along can’t do anything about the states that have legalized it. The bad news is that whoever ends up as Attorney General might not feel bound to honor the promise to not prosecute marijuana cases in those states. Even then, however, the clock can only be wound back so much. State police won’t be particularly motivated to enforce federal law when their own state law permits marijuana use/possession, so FBI and DEA agents would be the bulk of the enforcing and investigating agencies for any raids. They already farm out many of their larger marijuana dealing and transportation cases to state courts and state prosecutors. A change in enforcement would require federal prosecutors to pick up the cases, and even with a change in the guard, I doubt most USAs and AUSAs would be particularly chomping at the bit to return to the days of prosecuting marijuana cases as opposed to much larger cocaine/heroin/meth transportation cases and their real bread and butter - corruption/counter-terrorism cases. Also, federal trials for marijuana offenses in the legalized states would also involve juries that may be susceptible to very powerful nullification arguments or pressures. That would be an additional factor that federal prosecutors wouldn’t want to deal with. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [December 1, 2016, 4:21am UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/7 "2016-12-01T04:21:06Z")
This is more of a Great Debate than a topic specific to Elections. Off it goes. ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [December 1, 2016, 5:50am UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/8 "2016-12-01T05:50:27Z")
> [@buddha\_david](#): > > The President does not have the right to unilaterally change the law. The best Obama can do – and in fact he has already done so – is to instruct the DEA to _not_ enforce federal drug laws in states where medicinal/recreational marijuana has been legalized, as long as they are conforming to state law. This directive can easily be overturned – and probably will be – by his successor. How is it changing any law though? The DEA sets the schedule at will (like they recently tried to schedule I kratom, on their own, without input from the legislature. But they paused the scheduling for a period of public comment due to pushback against them). Why on Earth can’t he order them specifically to change it, regardless of public petitions or how they’ve responded to them? > [@tomndebb](#): > > This is more of a Great Debate than a topic specific to Elections. > Off it goes. I didn’t really frame it as a debate, nor intend for it to be, but OK. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2016, 8:30am UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/9 "2016-12-01T08:30:01Z")
> [@Rigamarole](#): > > How is it changing any law though? The DEA sets the schedule at will (like they recently tried to schedule I kratom, on their own, without input from the legislature. But they paused the scheduling for a period of public comment due to pushback against them). Why on Earth can’t he order them specifically to change it, regardless of public petitions or how they’ve responded to them? Wasn’t the kratom intended to be temporary Schedule I listing pursuant to 21 USC § 811(h) ? And it seems to me that the answer to your question is also found in 21 USC § 811(a) as applied via 28 CFR § 0.100(b), which lays out who has to do what, when, in order to add items to the Schedules. Congress has delegated its authority to modify the schedules to the executive branch, in othner words, but only when they follow specific steps. Those do not include the President doing a Picard. (“Make it so.”) ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [December 1, 2016, 4:07pm UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/10 "2016-12-01T16:07:49Z")
One thing that got brought up with the Canadian government’s announced move to legalization, which would also apply to the US, is that a number of international treaties include marijuana prohibition. > **[Marijuana Legalization Poses a Dilemma for International Drug Treaties](https://www.brookings.edu/blog/fixgov/2014/10/16/marijuana-legalization-poses-a-dilemma-for-international-drug-treaties/)** > > Wells Bennett and John Walsh recently published a report detailing the dilemmas and opportunities the domestic legalization of marijuana creates for the United States' international treaty obligations. In this post, Jon Rauch interviews Bennett about... ---
**Author:** ![Evan\_Drake](https://avatars.discourse-cdn.com/v4/letter/e/b487fb/32.png) [@Evan\_Drake](https://boards.straightdope.com/u/Evan_Drake)\ **Post date:** [December 1, 2016, 6:00pm UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/11 "2016-12-01T18:00:35Z")
> [@DigitalC](#): > > Obama had eight years to treat marijuana like alcohol and cigarettes, it’s a bit late now. His thinking has ‘evolved’ much as with same-sex marriage, to the ( presently ) popular side of history. That way one can do fuck all about something but still win plaudits for one’s enlightenment. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [December 1, 2016, 8:29pm UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/12 "2016-12-01T20:29:43Z")
> [@CarnalK](#): > > One thing that got brought up with the Canadian government’s announced move to legalization, which would also apply to the US, is that a number of international treaties include marijuana prohibition. > > [Marijuana Legalization Poses a Dilemma for International Drug Treaties | Brookings](https://www.brookings.edu/blog/fixgov/2014/10/16/marijuana-legalization-poses-a-dilemma-for-international-drug-treaties/) Treaties only have the force of law because the Senate ratified them. If Congress (including the Senate) changes the law, then the treaty no longer applies, at least in that particular aspect. Then, horror of horrors, other partners in the treaty might end _their_ prohibition, too! The US is the reason all those treaties mandate prohibition anyway. If we end it, I doubt many other countries will argue with us over it. I agree that the president probably can’t unilaterally break international treaties by himself, though. But Congress certainly can. And in this case, should. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 1, 2016, 9:14pm UTC](https://boards.straightdope.com/t/obama-thinks-marijuana-should-be-legalized-what-can-he-do-about-it-before-1-20/773492/13 "2016-12-01T21:14:04Z")
> [@Bricker](#): > > Wasn’t the kratom intended to be temporary Schedule I listing pursuant to 21 USC § 811(h) ? > > And it seems to me that the answer to your question is also found in 21 USC § 811(a) as applied via 28 CFR § 0.100(b), which lays out who has to do what, when, in order to add items to the Schedules. > > Congress has delegated its authority to modify the schedules to the executive branch, in othner words, but only when they follow specific steps. Those do not include the President doing a Picard. (“Make it so.”) I agree, but in a constitutional sense, the executive branch IS the President. Any statutory scheme which portends to give a member of the executive branch greater powers than the President would be unconstitutional and a violation of the separation of powers, no? IOW, if these seven employees of the DEA can reclassify marijuana’s schedule, but the President cannot, then Congress has elevated these seven individuals to a position of power greater than that of the president: something which it 1) may not do, and 2) is impossible under our constitutional scheme.