Here is a riddle: How can some states legalize marijuana (for medical and/or recreational use) when the national government has declared marijuana an illegal drug?
The answer: Federalism. (Thank James Madison for this one.)
Although the U.S. Constitution recognizes that the states retain “police powers” over the health, safety, and welfare of their citizens, Article I of the document gives Congress power over interstate commerce (a power that has been very broadly defined in subsequent U.S. Supreme Court cases.) The result is a grey area of shared powers with the result that the federal government can attempt to trump (no pun intended) the efforts of the states to decriminalize marijuana.
Under the federal Controlled Substances Act, the Drug Enforcement Administration is authorized to classify drugs. The DEA does so using a system of classification called schedules. Schedule I drugs are viewed as having the most potential for abuse while Schedule V the least.
Marijuana, along with heroin, LSD, and ecstacy are Schedule I drugs, defined as drugs with no currently accepted medical use and a high potential of abuse.
In contrast, Schedules II through Schedule V drugs are recognized as having medicinal purposes.
But take a look at this: oxycodone, fentanyl, and cocaine are categorized as less dangerous Schedule II drugs. And FYI, Schedule III drugs include anabolic steroids, codeine, and testosterone; Schedule IV drugs include Ambien, Ativan, Valium, and Xanax; and Schedule V drugs include antidiarrheal, anitussive, and analgesic drugs.
If this classification system makes sense to you, I want what you’re smoking. As it stands, the federal government maintains that marijuana is akin to heroin, and because marijuana is more likely to be abused than opioids, fentanyl, and anabolic steroids, it is more dangerous than those drugs. I beg to differ since the death tolls, addictions, and physical harms from these Schedule II and III drugs argue otherwise.
The implications from being categorized as a Schedule I drug are many:
- It makes “medical marijuana” an oxymoron because the federal government states that marijuana has no medical use.
- This makes it very difficult for researchers to study the medical effects of cannabis because it is so strictly regulated.
- Evidence of the curative powers or symptom relieving powers of medical marijuana are therefore mostly anecdotal: patients say it helps. But for this to be recognized by the DEA, scientific studies must prove this—and this is not allowed for Schedule I drugs (a Catch-22).
- This means that although some states have legalized the growth, distribution, and use of cannabis, these actions are still illegal under federal law.
- Given this, physicians, clinics, and distributors may be understandably uneasy about becoming involved with medical marijuana.
- Because of its illegal designation on the national level, cannabis businesses are hampered: the US Postal Service cannot ship this drug, national banks will not authorize accounts or credit cards to be used for these drugs, and health care insurance companies will not cover this drug.
So why isn’t the federal government enforcing its ban on marijuana by raiding those who are breaking federal law?
Each year since 2014, Congress has renewed the Rohrabacher-Blumenauer Amendment that disallows the U.S. Drug Enforcement Agency from using federal dollars to prosecute marijuana businesses operating in states that have legalized them. But this is a precarious protection that Congress has to renew each year. Attorney General Jeff Sessions has asked Congress not to renew the Amendment this year so that he can enforce federal law. (So much for the Republican Party’s love of states rights.)
Therefore, as much as Florida seems reluctant to enact a process that respects the mandate from the passage of Amendment 2 legalizing medical marijuana, the real problem is the DEA and the classification of cannabis as a Schedule I drug. States like Florida may attempt to chip away at the federal law criminalizing marijuana, but it will take actions on the federal level to truly give patients access to medical cannabis.
What is needed are studies to explore the medical purposes of marijuana, and to make this possible, marijuana should be recategorized as a Schedule II or Schedule III drug.
And there may be another way. Senator Orrin Hatch (R-UT) has introduced the MEDS (Marijuana Effective Drug Study) Act of 2017 that would allow more medical marijuana research to be conducted.
It’s high time. (Sorry about the pun.)