Does Obama Have the Power to Legalize Marijuana?

Yes, President Obama could legalize marijuana, but it wouldn’t be a quick or easy process.

The president recently said that he considers pot less dangerous than alcohol. Yet the federal government classifies the drug as a Schedule 1 substance, meaning it has “no currently accepted medicinal use and a high potential for abuse.”

And a recent petition calling for Obama to remove marijuana from the list of banned substances has 41,000 signatures and will likely keep adding more. With a clear majority of Americans in favor of legalization, it’s not hard to find supporters.

So would the president legalize it?

Let’s not get ahead of ourselves. Obama has shown that he’s willing to keep an open mind about pot — you’d expect as much from the leader of the “Choom Gang” — but he hasn’t endorsed wholesale legalization.

Like most national politicians, he seems content to let the experiments in Colorado and Washington simmer for a while.

Even if he wanted to legalize the drug, a few things would stand in his way.

International Treaties

In 1961, the U.S. agreed to a United Nations treaty that makes marijuana illegal apart from medical and scientific uses.

We’re probably already in violation of that pact. In Colorado, pot can be legally produced, sold and consumed, a situation that has irked officials from the United Nations.

Complete legalization would break our treaty obligations, but legalizing pot for medical purposes would be permitted.

The Controlled Substances Act

The Controlled Substances Act regulates the possession, sale and use of potentially dangerous drugs in the United States. Under the law, drugs are broken down into “schedules,” according to the medical value and propensity for addiction.

The attorney general can change the ranking of a drug, in conjunction with the Drug Enforcement Administration (DEA) and the Department of Health and Human Services (HHS).

In 1999, for example, Marinol — a kind of synthetic marijuana in pill form — was downgraded to a Schedule 3 substance. That meant it could be used for medical purposes.

Reclassifying a drug isn’t a particularly easy process. Vanderbilt law professor Robert Mikos recently called it “notoriously cumbersome” and said it could involve months, if not years, of hearings.

But it’s doable. The main catch is, again, international treaties. The Controlled Substances Act appears to require the attorney general to adhere to international agreements when reclassifying drugs.

That’s not an excuse, according to Dan Riffle, the director of federal policy at the Marijuana Policy Project. His group launched the petition demanding action from Obama.

“If the president wanted marijuana rescheduled, it would happen,” he said. “If he wanted to lean on the right people, it would happen.”

Of course, Congress could act, too. They’re the ones who passed the Controlled Substances Act in the first place. But the body’s record of inactivity over the past few years isn’t encouraging for activists who want sweeping social change.

That keeps the focus on Obama.

“He’s correct that marijuana is safer than alcohol and he should do something about it,” Riffle said. “It’s nice to hear him say that, but actions speak louder than words.”

The takeaway: Completely removing pot from the list of banned substances would be a heavy lift for the Obama administration, and possibly beyond the authority of the executive branch. A more reasonable step could be reclassifying the drug so that it could be used as medicine.

Ted Hesson was formerly the immigration editor at Fusion, covering the issue from Washington, D.C. He also writes about drug laws and (occasionally) baseball. On the side: guitars, urban biking, and fiction.