Either Congress or the executive branch has the authority to change the status of marijuana under the
CSA. Congress can change the status of a controlled substance through legislation: Congress included
marijuana in Schedule I by legislation when it enacted the CSA, and has more recently passed legislation
to impose controls on other substances, including synthetic cannabinoids and fentanyl analogues. In the
alternative, the CSA empowers DEA to make scheduling decisions through the notice-and-comment
rulemaking process, in consultation with the Department of Health and Human Services (HHS) (HHS has
delegated its factfinding role in this process to the Food and Drug Administration (FDA)). The CSA
provision directing DEA to schedule controlled substances as “required by United States obligations
under international treaties” may limit the agency’s authority to relax controls of marijuana; another CRS
report discusses considerations for Congress related to marijuana’s status under international drug control
treaties.
If the President sought to act in the area of controlled substances regulation, he would likely do so by
executive order. However, the Supreme Court has held that the President has the power to issue an
executive order only if authorized by “an act of Congress or . . . the Constitution itself.” The CSA does
not provide a direct role for the President in the classification of controlled substances, nor does Article II
of the Constitution grant the President power in this area (federal controlled substances law is an exercise
of Congress’s power to regulate interstate commerce). Thus, it does not appear that the President could
directly deschedule or reschedule marijuana by executive order.
Although the President may not unilaterally deschedule or reschedule a controlled substance, he does
possess a large degree of indirect influence over scheduling decisions. The President could pursue the
appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS,
and FDA to consider administrative descheduling of marijuana. The notice-and-comment rulemaking
process would take time, and would be subject to judicial review if challenged, but could be done
consistently with the CSA’s procedural requirements. In the alternative, the President could work with
Congress to pursue descheduling through an amendment to the CSA.
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