Sen. Elizabeth Warren (D-MA) says it’s time to “join the 21st century” and legalize marijuana—but Stephen Colbert didn’t let it go unnoticed that she declined to answer his question about whether was high herself during an appearance on The Late Show on Monday.
Colbert asked the senator a two-part question on cannabis: How is marijuana descheduling distinct from legalization? And “are you high right now?”
Warren, a longstanding advocate for marijuana legalization who recently led a letter with 11 colleagues imploring the Drug Enforcement Administration (DEA) to deschedule cannabis, took the first question.
“The answer is legalization is what you could do if you had a functional Congress,” she said. “Well, that’s not the world we live in. So descheduling is something the administration could do without going to Congress.”
In general, advocates consider descheduling synonymous with legalization, as it means removing cannabis from the Controlled Substances Act (CSA) entirely, which would remove associated criminal penalties, effectively legalizing it.
However, Warren seems to be making a more nuanced point about the difference between descheduling and legalization that comes with a regulatory framework for sales, which is something that would ostensibly require congressional action.
“Right now marijuana is scheduled, it’s called, as a drug by the DEA at the same risk as heroin,” she said. “And that means not only is it illegal, you can’t even do research on it. It’s so no—and what we’re saying in this letter is, ‘Guys, get with it at the DEA.’ It’s not 1954. More than half of all states have legalized marijuana.”
To be clear, it is possible to carry out research into cannabis despite its Schedule I status, but officials and experts have long criticized the onerous registration process and limited access that’s held up marijuana studies for decades.
The letter that Warren led made the case to DEA that it should go further than what was recommended by the U.S. Department of Health and Human Services (HHS) last year, which was to move cannabis from Schedule I to Schedule III. That would not federally legalize marijuana, nor would it sanction state markets; however, it would have other impacts such as removing research barriers and allowing state-licensed cannabis businesses to take federal tax deductions that they’re currently barred from under the Internal Revenue Service (IRS) code known as 280E.
“The idea is to say, at the federal level, instead of creating this conflict, which is causing all kinds of problems—we’ve got problems with banking laws and problems in tax laws—you just say deschedule,” the senator said. “And look, we need some restrictions. Of course, let’s treat it like alcohol. We need to dechedule it, join the 21st century and let’s make marijuana legal. It shouldn’t be that hard.”
During her appearance on Colbert’s late night show, Warren stuck to the policy issues and did not take the bait on the host’s question about her own personal consumption.
“I want to point out you didn’t answer my second question,” Colbert teased.
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In the meantime, rumors have been swirling about a possibly imminent announcement from about federal marijuana policy, potentially concerning the ongoing scheduling review. But a Biden administration official told Marijuana Moment on Tuesday that they weren’t aware of anything coming up this next week.
Adding to the speculation is the fact that congressional lawmakers have been especially active in recent days in their advocacy for action (or inaction) on cannabis scheduling matters.
Last week, for example, a Republican congressman who has long opposed marijuana reform is told DEA that the Food and Drug Administration (FDA) came to a “misguided conclusion” to recommend rescheduling cannabis—challenging the health agency’s scientific standards and imploring DEA to dismiss them as it prepares to make a final determination.
HHS Secretary Xavier Becerra said last month that his agency has “communicated” its “position” on marijuana rescheduling to DEA and has continued to offer additional information to assist with the final determination.
DEA has steadfastly maintained it has “final authority” over the matter and can make any scheduling determination that it sees fit.
“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” the agency said in a letter to lawmakers last month. “DEA is now conducting its review.”
The statement came in response to an earlier letter from 31 bipartisan lawmakers, led by Rep. Earl Blumenauer (D-OR), that urged the agency to consider the “merits” of legalization as it carried out its review.
Prior to HHS releasing a trove of documents concerning its cannabis recommendation, a coalition of 12 Democratic state attorneys general implored DEA to move forward with federal marijuana rescheduling, calling the policy change a “public safety imperative.”
In another letter in December, 29 former U.S. attorneys called on the Biden administration to leave cannabis in Schedule I.
Also that month, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to Biden calling on the administration to reschedule marijuana by the end of last year.
Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.
Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.
In October, Advocates and lawmakers who support cannabis reform marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.
Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee in September, also filed legislation late last year to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.
A coalition of 14 Republican congressional lawmakers, meanwhile, separately urged DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.
A recent poll found that about one-third of marijuana consumers say they would go back to the illicit market if cannabis was rescheduled and only made legally available as a Food and Drug Administration- (FDA) approved prescription drug.
Another recent survey found that President Joe Biden stands to make significant political gains if marijuana is rescheduled under his administrative directive. Of course, Biden doesn’t directly control the final outcome.
The president has routinely touted his 2022 scheduling directive, as well as a mass pardon he granted for people who’ve committed federal marijuana possession offenses. He followed up on that action in December with a renewed and expanded pardon proclamation. The Justice Department has already begun issuing certifications for people who applied under the second round.
Last weekend, meanwhile, Vice President Kamala Harris said the administration’s move to pardon people for federal marijuana possession offenses is an example of how it is delivering for Americans, particularly young and Black voters who could be key to Biden’s reelection bid this year.
Photo element courtesy of Gage Skidmore.
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