Can the president decriminalize marijuana without congressional action?

Question

I've heard this many times before, I assume it's true and can't find any rejection of it. However, asking here for a second opinion.

• The Attorney General serves at the "pleasure of president" and can be fired with or without cause.
• The Attorney General can reschedule or deschedule any controlled substances.

If correct,

• The president can instruct the Attorney General to deschedule marijuana.
  • If the Attorney General refuses, the president can ask for a resignation or remove the AG from office. The process restarts.
  • If the Attorney General accepts, marijuana is decriminalized.

The question here assumes (a) the president wills it, (b) the president is willing to exercise any lawful executive action to see the agenda through.

Note for the purposes of this question, I would primarily like this approach to be validated. I am also open to other approaches that exclude congressional action.

Answer 1

The Controlled Substances Act of 1970 provides two ways for a substance to be rescheduled. One is by congressional action, which has been attempted, e.g., in a bill authored by Barney Frank and Ron Paul. It can also be done by a rule-making process through HHS and DEA, but this petition process is extremely slow and, although it has been tried multiple times, has never succeeded. The HHS-DEA process involves the Justice Department and HHS, both of which are part of the executive branch.

The president does not really have unlimited power to force the Justice Department and HHS to do things. The Justice Department is a law-enforcement organization, and there is traditionally somewhat of a firewall between it and the oval office. Most presidents understand this, and are loath to micromanage things like the disposition of specific criminal cases.

It is true that the current lack of federal prosecution for simple possession of marijuana has been based on executive orders. However, this is a matter of discretion in prosecution over a broad category of cases, but it doesn't overrule the entire structure set up by the CSA or, e.g., make it legal for banks to take marijuana money.

If a president wanted to use executive-branch action to reschedule marijuana, then I don't think he would realistically either need to, nor would it suffice to, threaten some kind of Saturday night massacre at the DoJ. He would simply campaign on it, pick nominees for AG and HHS who supported it, and then the next time a petition was going through the rule-making process, they would manage the process in such a way that it would succeed, although it could take five or ten years to complete.

Before doing something like this, I think he would realistically also need to get Congress on board. Otherwise they could simply reverse him legislatively.

I don't think rescheduling would have any effect on state laws that still make recreational marijuana illegal in 32 states. Nor is rescheduling the same as legalization.

Answer 2

It is important to understand that although the President is the Chief Executive of the Executive branch of US government, he does not have absolute authority. The Executive branch is composed of a number of independent agencies tasked by Congress to perform respective duties. The President can certainly issue requests and orders to the heads of these agencies, and can even appoint or remove most of those agency heads. But the agency head is vetted and confirmed by Congress, and is expected to conform to the mission of the agency as laid out by Congress to the best of her ability, irrespective of what the President wants.

In the particular case of marijuana, Biden could issue and executive order to the Justice Department that marijuana cases not be pursued or prosecuted, and could issue a request to the DEA and HHS to review the scheduling of the drug. But the heads of agencies in the Justice Department would have to consider that order in the light of their standing missions, and may choose to ignore, modify, or interpret the executive order in any way they find consistent with their understanding of their duties under the law. Likewise, the heads of the HHS and DEA might be convinced to reevaluate the scheduling of marijuana, but Biden could not prevent them from deciding once again that marijuana should remain on Schedule I. Biden could fire any of these agency heads, but control of the agency would devolve to an assistant head (who is likely to follow their predecessor's lead) until Congress confirmed a new appointment (who is likely to conform to Congress' will, not the President's). The President doesn't have a magic bullet that can shoot around established law and standing procedure. He has a tremendous amount of influence that he can use to set policy and procedure, but at the end of the day influence is no sure thing.