Obama’s Marijuana Policy Is Dangerous – He Might Get Sued for It

House Republicans passed a bill to sue Obama for failure to enforce the marijuana ban…

It’s hardly news anymore that Congressmen pass useless bills. The “Enforce the Law Act” (ELA) is another bill in a long line of bills passed as a political stunt. The ELA would allow Congress to sue the President for failure to execute laws. House Republicans insist the law is necessary because President Obama cannot cherry pick which laws he wants to enforce. Republicans claim that Obama’s policy on marijuana is an example of the president’s breach of executive duties.

What exactly is Obama’s policy on marijuana?

On one hand, Obama has promised not to interfere with Colorado or Washington as the two states legalize recreational marijuana. The president has also promised that marijuana dispensaries can do business with banks without prosecution by the Justice or Treasury Department.

On the other hand, the president is not the proud supporter of marijuana legalization that Republicans portray him as. The Controlled Substances Act (CSA) is the law which criminalizes drug usage at a federal level. The CSA divides drugs into certain categories. For example, Schedule I drugs are substances which have a “high potential for abuse” with “no currently accepted medical use.” Although the CSA is a congressional act, determining which drug is a Schedule I drug is the responsibility of the Drug Enforcement Agency (DEA). If Obama ordered the DEA to remove marijuana from the list of regulated drugs, federal raids on marijuana could end overnight.

If that position is too radical, the president could simply order marijuana to be moved down from Schedule I to Schedule II. Schedule II drugs are substances which have a “high potential for abuse” with “currently accepted medical use with severe restrictions.” Unlike Schedule I drugs, patients can lawfully access Schedule II drugs. Patients who use Schedule II drugs are subject to restrictions, such as mandatory written prescriptions, but the level of prosecution is not the same as Schedule I drugs.

Changing the legal status of marijuana would be a bold political move. I can understand why he would want to avoid taking such a step. However, even if the president doesn’t want to outright decriminalization marijuana, he could support state cultivation of the marijuana industry in other ways. The IRS continues to deny tax breaks to marijuana dispensaries and the US Trustees office makes its almost impossible for dispensaries to file for bankruptcy.

The president promised that the Justice Department wouldn’t interfere with Colorado or Washington, but the Justice Department also released a memo stating it would continue to make raids based on certain criteria. The restrictions aren’t controversial because the memo claims that its targets are dispensaries which sell to children or the black market. However, this gives the DEA a lot of room to maneuver since it’s always possible that some users will resell marijuana to people who shouldn’t have marijuana. A few bad apples are not a reason to completely undermine state policies though.

Allowing dispensaries to access banks is a good start. However, republican fears that the CSA isn’t being enforced are ill founded. President Obama hasn’t changed federal policy regarding marijuana. The policy is simply more subtle than usual.