Marijuana could be rescheduled either
legislatively, through Congress, or through the
executive branch. Congress has so far rejected all bills to reschedule marijuana. However, it is not unheard of for Congress to intervene in the drug scheduling process; in February 2000, for instance, Congress passed
Public Law 106-172, also known as the
Hillory J. Farias and Samantha Reed Date-Rape Drug Prohibition Act of 2000,
[10] adding
GHB to Schedule I.
[11]
The
Controlled Substances Act also provides for a rulemaking process by which the
United States Attorney General can reschedule marijuana administratively. These proceedings represent the only means of legalizing
medical marijuana without an act of Congress. Rescheduling supporters have often cited the lengthy petition review process as a reason why marijuana is still illegal.
[1] The first petition took 22 years to review, and the second took 7 years. In 2002, the
Coalition for Rescheduling Cannabis filed a third petition.
[OpenDNS] Rulemaking proceedings
Stages in rescheduling proceedings
- Filing of Petition with DEA
- Acceptance of Petition by DEA
- Initial Review by DEA
- Referral to HHS
- Scientific and Medical Evaluation by HHS
- HHS Report to DEA
- Evaluation of Additional Information by DEA
- Publication of DEA Decision
- (Judicial review by the U.S. Court of Appeals)
- (Public Hearing on Disputed Matters of Fact)
The
United States Code, under Section 811 of
Title 21,
[12] sets out a process by which cannabis could be administratively transferred to a less-restrictive category or removed from Controlled Substances Act regulation altogether. The
Drug Enforcement Administration (DEA) evaluates petitions to reschedule marijuana. However, the Controlled Substances Act gives the
Department of Health and Human Services (HHS), as successor agency of the
Department of Health, Education, and Welfare, great power over rescheduling decisions.
After the DEA accepts the filing of a petition, the agency must request from the HHS Secretary "a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a controlled substance." The Secretary's findings on scientific and medical issues are binding on the DEA. The HHS Secretary can even unilaterally legalize marijuana: "
f the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance." 21 U.S.C. § 811b.
[OpenDNS] Factors
Unless an international treaty requires controlling a substance, the Attorney General must, in finding whether the drug meets the three criteria for placement in a particular schedule, consider the following factors:
- The drug's actual or relative potential for abuse.
- Scientific evidence of its pharmacological effect, if known.
- The state of current scientific knowledge regarding the drug or other substance.
- Its history and current pattern of abuse.
- The scope, duration, and significance of abuse.
- What, if any, risk there is to the public health.
- Its psychological or physiological dependence liability.
- Whether the substance is an immediate precursor of a controlled substance.
[OpenDNS] 
