Pubdate: Mon, 10 Feb 2014
Source: San Francisco Chronicle (CA)
Copyright: 2014 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko
Page: A1

OBAMA RESISTS USING HIS POWER TO EASE POT LAWS

When it comes to the regulation of marijuana, President Obama has had
a hard time squaring his words with his actions - most notably, his
campaign promise to defer to state medical marijuana laws, followed by
a flurry of federal raids on state-licensed dispensaries and the
closures of hundreds in California.

Now Obama has discussed the subject in a national television
interview, and it's hard to reconcile his words with the law.

It happened Jan. 31, when CNN's Jake Tapper brought up the president's
headline-making observation during a recent New Yorker magazine
interview that marijuana was no more dangerous than alcohol. Could
that mean, Tapper asked Obama, that he would consider removing
marijuana from Schedule One of the Controlled Substances Act, reserved
for dangerous drugs that have no accepted medical use?

"What is or isn't a Schedule One narcotic is a job for Congress,"
Obama replied. When Tapper said he thought the Drug Enforcement
Administration made the decision, Obama responded, "It's not something
by ourselves that we start changing. No, there are laws undergirding
that determination."

Tapper then asked if Obama would support such a change, and the
president changed the subject, saying marijuana, like alcohol, was
subject to abuse, and that its users face long sentences that
sometimes have racial disparities.

White House spin

The White House has tried to spin his comments, suggesting that Obama
was really saying it was a job best suited for Congress, which placed
marijuana in Schedule One in 1970, alongside heroin and LSD, and has
repeatedly rejected bills to ease restrictions. But the
straightforward meaning of his words was that he and his
administration have no authority to reschedule the drug "by
ourselves." That's not the law. "You can add to the schedules by
regulation," said Marsha Cohen, a UC Hastings law professor and
coauthor of "Pharmacy Law for California Pharmacists," a book in its
seventh printing. "The DEA could do it. ... Most changes are made by
the DEA."

That's evident from the battles the Obama administration has fought in
the DEA and the courts to maintain the current prohibitions on
marijuana. It's also clear from the text of the Controlled Substances
Act, the 1970 law that bans or restricts the distribution of various
drugs in the United States and overrides more permissive state laws.

The law says the attorney general, by enacting regulations, can
"remove any drug or other substance from the schedules" if the
attorney general decides it belongs in a less-restricted category.
Every attorney general has delegated that authority to the DEA.

The law also says the secretary of Health and Human Services gets to
determine, after conducting an evaluation, whether a drug that is
being considered for rescheduling has medical uses, and can even
decide unilaterally that "a drug or other substance not be
controlled." The secretary has assigned those evaluations to the Food
and Drug Administration.

DEA's authority

The attorney general, other Cabinet secretaries and federal agencies
such as the DEA and FDA are all appointed by the president.

Even DEA agent and spokesman Joseph Moses, who insisted that his
agency's primary roles in such proceedings were law enforcement and
security, acknowledged that the executive branch, and not just
Congress, has the power to reschedule a drug.

"If the president wanted rescheduling, I don't think he'd have a hard
time persuading the DEA to do so," said San Francisco attorney Joseph
Elford, who was involved in the most recent effort to get the DEA to
remove marijuana from Schedule One. "He could do it if he wanted to,
and he's choosing not to."

Moving marijuana to Schedule Two would allow doctors to legally
prescribe it. Other Schedule Two drugs include morphine, Ritalin,
methamphetamine and cocaine.

Findings rejected

The DEA has battled rescheduling efforts for years, beginning in 1972,
when the National Organization to Reform Marijuana Laws asked the
agency's predecessor, the Bureau of Narcotics and Dangerous Drugs, to
move marijuana to Schedule Two.

The agency refused to consider it, relented after a court order, and
finally ordered public hearings before the DEA's chief administrative
law judge, Francis Young - who concluded in 1988 that cannabis was
"one of the safest therapeutically active substances known to man" and
should not remain under strict prohibition.

President Ronald Reagan's DEA administrator, John Lawn, rejected
Young's findings and adopted regulations tightening the criteria for
rescheduling. A federal appeals court upheld his decision in 1994.

Similar events unfolded after organizations led by Americans for Safe
Access sought to reschedule marijuana in 2002. The DEA sat on the
request for most of the George W. Bush administration, then rejected
it in 2011 under Obama.

Federal courts again upheld the decision, saying the DEA had
reasonably concluded - despite scientific reports suggesting that
marijuana had medical benefits - that no large-scale, long-term
studies had been conducted to confirm those findings. Another petition
is pending before the DEA from the governors of Washington, Rhode
Island, Vermont and Colorado.

"The Obama administration fought strenuously against reclassification"
in the DEA proceedings and the court case, said Kris Hermes, spokesman
for Americans for Safe Access in Oakland. He said Obama was "trying to
pass the buck to Congress" on marijuana - in contrast with the
president's State of the Union speech, in which he promised executive
action to bypass congressional logjams.

Easing supply barriers

Rescheduling pot as a Schedule Two drug, or the less-restricted
Schedule Three - the classification of the cannabis pill Marinol -
would make it available by prescription in pharmacies. Government
barriers to supplies for research would also be eased.

"It would not make it legal to smoke pot," said UC Hastings' Cohen,
who contends marijuana patients are better off with vaporizers than
reefers and wants the federal government to clear the way.

"There is obviously an accepted medical use in practice," she said.
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