Amid a huge urban crime spike, a rash of addict-occupied tent cities, a surge in fatal car crashes involving impaired drivers, rampant illegal immigration, and rising prices, President Biden has apparently concluded that what we really need is more marijuana. He essentially instructed his administration’s Department of Health and Human Services and Department of Justice to find a justification to move marijuana from a Schedule I drug—its classification for more than half a century—to a Schedule III drug, and the agencies are dutifully obliging. Thus, without congressional consultation, the Biden administration is on the cusp of implementing what the Congressional Research Service (CRS) says would be “a major shift in the federal government’s policy on marijuana.”
In October 2022, Biden issued a statement charting this course. It began with a distortion: “No one,” the president proclaimed, “should be in jail just for using or possessing marijuana.” In truth, few were. The Bureau of Justice Statistics’ 2019 report on prisoners found that “[m]ore than 99% of federal drug offenders were sentenced for trafficking,” rather than for use or possession.
Biden then announced his constitutionally dubious decision to “pardon . . . all prior Federal offenses of simple possession of marijuana.” Rather than use the pardon power as intended—to address specific cases and overturn the resulting convictions or sentences—Biden took it upon himself to overturn an entire class of convictions, effectively substituting his view of what the law should be for what it actually is. This is an abuse of the pardon authority, which was never intended to hand the president back-door veto power.
The president then signaled that he wanted marijuana reclassified as a Schedule III drug. Doing so would allow “legitimate” pot dealers to write off business expenses—including for advertising—to the tune of nearly $2 billion a year and would grant them easier access to banking services. Moreover, as CRS writes, the move would enable those who “lawfully” use weed for “medical” purposes to “be eligible to (1) access public housing, (2) obtain immigrant and nonimmigrant visas, and (3) purchase and possess firearms.” (Who doesn’t think pot and guns go hand in hand?)
To set the process in motion, Biden asked “the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.” Note his emphasis was on prompt action—“expeditiously”—and not on careful deliberation. Biden’s Cabinet officials carried out the president’s wishes: HHS recently signed off on the desired change, and DOJ is following suit.
Back when Americans recognized the legislative branch’s lawmaking prerogative, Congress passed the Controlled Substances Act (CSA) in 1970 and designated marijuana a Schedule I drug. While that legislation did allow the DOJ’s Drug Enforcement Agency (DEA) to change a drug’s schedule classification based on specific criteria that Congress laid out, CRS writes that “it does not appear that the President could directly deschedule or reschedule marijuana by executive order,” as the “CSA does not provide a direct role for the President in the classification of controlled substances.” In issuing his statement, Biden was trying to evade these limits, while signaling to his political appointees that he wanted a particular result achieved—and quickly.
In his statement, Biden complained that marijuana has the same classification as heroin and LSD (Schedule I) and a lower classification than fentanyl and methamphetamines (Schedule II). There is a clear reason for this. Congress designated as Schedule I and II drugs those with “a high potential for abuse”; those in Schedule II have an established medical benefit, and those in Schedule I do not. Schedule III drugs, meantime, have an established medical benefit and no high potential for abuse.
Shortly before Barack Obama left office in 2016, his DEA reexamined marijuana’s schedule classification and agreed with Congress’s 1970 designation. Unlike today, the DEA wasn’t then under a de facto presidential order to find a particular result. Instead, it was responding to a petition from two governors, Lincoln Chafee (RI) and Christine Gregoire (WA). The Obama-era DEA’s conclusions, which relied on “a scientific and medical evaluation and scheduling recommendation” from HHS, are revealing.
The report, written for the agency by DEA acting commissioner Chuck Rosenberg, examines the three key criteria laid out in the CSA for determining a drug’s scheduling level—the likelihood of abuse, accepted medical benefits, and the safety risks associated with medical use. Rosenberg said, “The HHS concluded that marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision.” Given these findings, the DEA wrote, “HHS recommended that marijuana remain in Schedule I,” adding that “there is no statutory basis” for changing its schedule classification under CSA criteria.
“In view of United States obligations under international drug control treaties,” Rosenberg said, “marijuana cannot be placed in a schedule less restrictive than schedule II.” One such treaty, the Single Convention on Narcotic Drugs, was ratified by a 84-0 Senate vote. The U.S. Court of Appeals for the D.C. Circuit noted that “several requirements imposed by the Single Convention would not be met if cannabis and cannabis resin were placed in CSA schedule III, IV, or V.”
On pot’s potential for abuse, the Obama-era DEA wrote that researchers have “observed that when squirrel monkeys are initially trained to self-administer intravenous cocaine, they will continue to bar-press delta-THC”—that is, they press a bar that releases marijuana’s primary psychoactive agent—“at the same rate as they would with cocaine.” The agency added, “Marijuana’s acute effects can significantly interfere with a person’s ability to learn in the classroom or to operate motor vehicles”—as “driving ability” is profoundly affected by “impaired perceptual motor speed and accuracy”—while some of “marijuana’s acute effects may not fully resolve until at least one day after the acute psychoactive effects have subsided.”
On marijuana’s potential medical benefits, the agency noted that “a drug may have a ‘currently accepted medical use’ . . . if [it] meets a five-part test.” First, “the drug’s chemistry must be known and reproducible”; however, the DEA noted, “the chemistry of marijuana . . . is not reproducible in terms of creating a standardized dose.” Second and third, studies must prove that the drug is safe and effective, but “there are neither adequate safety studies nor adequate and well-controlled studies proving marijuana’s efficacy.” Fourth, experts must support the drug’s use as a treatment, but there “is no evidence that there is a consensus among qualified experts that marijuana is safe and effective for use in treating a specific, recognized disorder.” And fifth, “the scientific evidence must be widely available,” but in marijuana’s case, it is “not available in sufficient detail to allow adequate scientific scrutiny.”
Thus, the Obama-era DEA concluded, “Marijuana does not meet any of the five elements necessary for a drug to have a ‘currently accepted medical use’” (italics added). Keep in mind that the agency said this 20 years after California had “legalized” medical marijuana. There had been plenty of time to study the drug’s potential medical benefits.
Enter the Biden team. Having received the president’s marching orders, HHS completed a new review of marijuana last summer that flipped the Obama-era review on its head. Biden’s HHS waved away obvious examples of marijuana abuse and the dearth of accepted evidence for pot’s medical benefits and greenlit a Schedule III reclassification—skipping right over Schedule II, just as Biden wanted. If ever an inquiry were undertaken with a preordained conclusion, this was it.
Of course, HHS’s inquiry should never have gotten off the ground. The Food and Drug Administration’s own website notes that “the FDA has not approved a marketing application for cannabis for the treatment of any disease or condition.” This fact, paired with the Obama-era finding that marijuana went 0-for-5 in meeting the qualifications for “currently accepted medical use,” should have ended the matter. As the Obama-era DEA observed, “Congress established only one schedule, Schedule I, for drugs of abuse with ‘no currently accepted medical use in treatment in the United States.’”
But Biden’s HHS was not to be deterred. In contrast to the five-part test applied under the previous Democratic administration, Biden’s HHS writes that “in evaluating whether there exists some credible scientific support” for using marijuana as medicine, the “factors considered in favor of a positive finding” are just two: whether “favorable clinical studies, although not necessarily FDA approval-level, of the medical use of marijuana have been published in peer-reviewed journals, and/or” whether “qualified expert organizations . . . have opined in favor of the medical use.” So, Biden’s HHS regards “favorable” studies, which the FDA wouldn’t necessarily accept, along with the opinions of some outside groups, as sufficient evidence of pot’s having a “currently accepted medical use.”
Even by this very low standard of evidence, marijuana didn’t fare well. HHS observes that “the vast majority of professional organizations did not recommend the use of marijuana in their respective specialty.” Choosing to view this nearly empty glass as half-full, HHS then adds, “however, none specifically recommended against it,” either, “with the exception of the American Psychiatric Association (APA).”
Actually, however, several other professional organizations seem to oppose using the drug for medical purposes. HHS itself admits that the American Academy of Neurology “[d]oes not support the use of, nor any assertion of therapeutic benefits of, cannabis products as medicines . . . in the absence of sufficient scientific peer-reviewed research.” The agency also reports that the American Epilepsy Society believes the “[s]cientific evidence for the use of cannabis itself in the treatment of epilepsy is highly limited,” and HHS concedes that the Association for Addiction Professionals “[d]oes not currently support the use of cannabis as medicine or for recreational purposes.” And the aforementioned APA, in HHS’s words, says marijuana is associated “with [the] onset of psychiatric disorders.”
HHS nevertheless concludes that because some non-“FDA approval-level” studies have found some medicinal benefits from marijuana, and since some professional organizations haven’t entirely ruled out its potential for future medical use, that suffices in establishing “currently accepted medical use.” (This, of course, is a far different standard than the one to which the agency held ivermectin, hydroxychloroquine, and other drugs during Covid-19.) As to what, exactly, marijuana is an accepted treatment for, HHS writes, “The largest evidence base substantiating the use of marijuana in clinical practice exists for its use in treating pain (in particular, neuropathic pain).” This, despite HHS’s observation that the International Association for the Study of Pain “found a lack of high-quality evidence” for such a conclusion, and the agency’s concession that the “evidence base regarding efficacy and safety fails to reach the threshold at which IASP can endorse [marijuana’s] general use for pain control.”
While grasping onto its thin reed of evidence of pot’s “currently accepted medical use,” HHS also examines the drug’s potential for abuse. As noted above, the 1970 statute classifies substances with “a high potential for abuse” as Schedule I or Schedule II drugs. Drugs with “a moderate to low potential for physical and psychological dependence”—and that have an “accepted medical use”—are classified as Schedule III drugs. On this basis, both Congress and the Obama-era DEA determined that marijuana should be classified as a Schedule I drug—certainly not as a Schedule III drug.
Seeking to sustain its implicit assertion that marijuana doesn’t have “a high potential for abuse,” the Biden HHS compared pot’s abuse potential with those of other drugs. But the agency’s conclusions from those comparisons don’t even match its own findings. HHS writes:
The most notable conclusion from an evaluation of various epidemiological databases related to the medical outcomes from abuse of selected drugs is that for all measures that were evaluated from 2015 to 2020, the rank order of the comparators in terms of greatest adverse consequence typically places alcohol, heroin, and/or cocaine in the first or immediately subsequent positions, with marijuana in a lower place in the ranking.
Based on the myriad examples that HHS highlights, however, this conclusion is patently false.
Marijuana routinely ranks far worse than cocaine in comparisons of adverse consequences, which HHS’s own data reveal. If, without saying so, the agency is referring to comparisons made on a per-user basis—that is, the percentage of those who take a given substance and abuse it or experience adverse consequences—then marijuana routinely ranks far worse than alcohol. There is no basis for HHS’s assertion that marijuana fares better than both cocaine and alcohol, unless HHS means on a per-user basis in the former instance and overall in the latter instance—which would be cherry-picking in the extreme.
For example, as HHS notes, the National Poison Data System tracked “abuse cases” from “a single substance” from 2015 to 2021, and found that marijuana had more than twice as many “abuse cases” as did cocaine. When it comes to “utilization-adjusted abuse case rates”—based on “the prevalence of past-year use”—abuse rates were far higher for marijuana than for alcohol (though lower than for cocaine). The Nationwide Emergency Department Sample, as HHS observes, found that there were more than twice as many emergency-department visits in 2020 for marijuana-related disorders than for cocaine-related disorders, while on a “utilization-adjusted” basis there were far more ED visits for marijuana-related disorders than for alcohol-related disorders. Meanwhile, the National Inpatient Sample, per HHS, shows that in 2020 there were twice as many hospitalizations involving marijuana-related disorders as involving cocaine-related disorders, and twice as many hospitalizations involving marijuana-related disorders as involving alcohol-related disorders, when factoring in utilization rates. In short, HHS’s claim that marijuana fares better than both cocaine and alcohol is contradicted by the agency’s own cited evidence.
In several comparisons, marijuana fares far worse than cocaine in general and far worse than alcohol per user—and sometimes worse than both. As HHS notes, marijuana was the drug used by the highest percentage of people “entering or being assessed for substance use disorder treatment” within the National Addictions Vigilance Intervention and Prevention Program’s network between 2020 and 2021. Marijuana was more often associated with treatment for a substance-use disorder than alcohol or cocaine—or, for that matter, fentanyl, hydrocodone, oxycodone, or even heroin. Yet the Biden administration’s rescheduling effort implies that it does not believe marijuana has “a high potential for abuse.”
Statistics from Monitoring the Future, a survey funded by HHS’s National Institute on Drug Abuse of the National Institutes of Health, further contradict the administration’s position. MTF finds that the percentage of Americans ages 19 to 30 who use pot on a daily basis—a rather straightforward indication of abuse—has nearly tripled between 2000 and 2022 (from 3.8 percent to 11.3 percent) and doubled over the most recent decade for which the survey’s results are available (from 5.6 percent in 2012 to 11.3 percent in 2022). The survey first measured daily pot use among those ages 35 to 50 in 2008, and that rate has more than doubled since (from 2.5 to 6.5 percent).
Whereas the MTF survey in 2000 found 19-to-30-year-olds were more likely to use alcohol than marijuana on a daily basis, today, they are now about two-and-a-half times more likely to use marijuana daily than alcohol—with the entire change owing to increased pot use, not reduced alcohol use. What’s more, “today’s marijuana packs seven to 30 times the punch of Woodstock-era weed,” write the former director of the Office of National Drug Control Policy, John Walters, and former Attorney General Bill Barr.
Finally, HHS notes—before blithely dismissing the fact—that, according to HHS’s Youth Risk Behavior Surveillance System surveys of high school students, 53 percent of drivers who had smoked pot in the past month said that they had driven while under the influence of marijuana, compared with 16 percent of drivers who’d had a drink in the past month and said they had driven under the influence of alcohol. So, about one-sixth of high school drinkers drove under the influence while most high school pot-smokers did. That’s the difference between Russian roulette–level odds and something worse than a coin flip.
In short, marijuana is widely and increasingly abused and has no currently accepted medical use in the United States. The Biden administration, with little basis, is asserting otherwise on both counts and is set to overrule Congress—and the Obama-era DEA—in the process, thereby paving the way for more pot use and greater profits for Big Marijuana.
At the end of his statement calling for his administration to reclassify marijuana as a Schedule III drug, Biden proclaimed, “Too many lives have been upended because of our failed approach to marijuana.” If this gambit succeeds, we ain’t seen nothing yet.
Photo: Tom Williams/CQ-Roll Call, Inc via Getty Images