Congress might be the quickest path to rescheduling marijuana

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The fate of marijuana rescheduling took a major hit before the Fourth of July holiday, when the U.S. Supreme Court tossed a wrench into the massive engine that is the regulatory state to see what will break.

The high court’s ruling in Loper v. Bright massively curtails the power of regulatory agencies to set and enforce rules, including the proposal to recategorize marijuana as a Schedule 3 substance.

Were it to play out on the current path as an administrative action, rescheduling could fail.

But that’s not the problem.

Rescheduling now will take far longer than it otherwise would have because the Supreme Court gave the opposition new lines of attack against the rescheduling decision.

Rescheduling opposition

Opponents already were going to challenge rescheduling; now, they’ve got more fuel for their fire.

The organized, well-funded opposition will use the precedent set in Loper, along with many other attacks, to impede progress on many fronts.

I’ve already seen objections to the U.S. Department of Health and Human Services (HHS) decision to use a different two-part test for CAMU (currently accepted medical use) instead of the current five-part test.

Yes, there are plausible arguments for why the Supreme Court should accept HHS’ adoption of this different test, but since Loper v. Bright, the judicial branch no longer owes any deference to this decision.

The federal courts will hear the case, which will probably take forever and a day.

And this is only one potential line of attack.

Congress should reschedule marijuana

Rescheduling opponents don’t need to be right on the law when they can exploit the crawling pace of the judicial process to achieve the same end.

Delay, delay, delay – and then delay some more: That’s the modern playbook for cannabis opponents.

Consider the prohibitionists’ dirty opposition playbook to the recent legalization vote in Oklahoma.

However, rescheduling or descheduling through regulation is not, and has never been, the only way to move marijuana from Schedule 1 to Schedule 3.

Congress can also get there, and it should have been the branch making this decision in the first place.

The fact that medical marijuana is still federally illegal despite 90% approval is a fair demonstration of why Congress’ approval ratings are currently at a not-so-balmy 13%.

In fact, the Congressional Research Service recently said Congress can move marijuana to Schedule 3 with “greater speed and flexibility” than the administrative process, which sits with the Drug Enforcement Administration.

Cannabis is popular with voters

If the situation plays out this way, it will put full legalization back on the table.

Yes, Congress has been historically unproductive in recent years.

But full marijuana legalization continues to be astonishingly popular among voters, with a 70% approval rating, according to Gallup.

Lawmakers get dinged from time to time for conflating rescheduling and incremental proposals such as the SAFER Banking Act with full marijuana legalization.

If they need to do the work that regulators can’t, then they should deschedule marijuana, which is both the more popular policy and the easiest to tout to voters.

If this sounds like a fever dream, it isn’t – at least, it’s no more of one than putting absolute faith in the judiciary to quickly adjudicate the inevitable flood of lawsuits that will challenge rescheduling.

Elected officials respond to public opinion in a way the judiciary does not.

While the basic pattern among lawmakers had been to punt rescheduling to the regulators, that’s no longer a good plan.

Folks on Capitol Hill are smart enough to realize that.

Marijuana is a bipartisan issue

Rescheduling through Congress requires voters to elect more pro-marijuana lawmakers.

From purely an electoral standpoint, this does seem feasible, and the country’s 35 million frequent cannabis users of voting age seem to be fully on board with it.

Polling that we conducted earlier this year established that pro-cannabis campaign promises can motivate marijuana consumers to vote in November.

It also found that, among likely voters who use cannabis regularly, 59% of them would vote for a pro-marijuana candidate regardless of the party affiliation of that candidate.

The poll had 635 respondents, all of them likely voters who consume cannabis frequently, for a margin of error of plus or minus 3.9%.

This data suggests potential for bipartisan legislation, as the academic consensus in this area is that candidates tend to keep their campaign promises, or at least try to keep them.

Backing pro-cannabis candidates

Instead of waiting around for the judiciary to do a 180-degree turn on marijuana, I invite all of those involved in the movement – particularly any company with a pro-cannabis business agenda – to help elect pro-cannabis representatives in November.

Companies, activists and consumers also can get more involved in the positions of their respective parties.

Republican voters, for example, can push their party away from its longstanding policy of prohibition and selective enforcement, which sadly is part of the GOP’s policy platform at the moment.

This is a partisan political matter, and it always has been.

But it shouldn’t be.

Democrats widely understand that pro-cannabis policy is about personal freedom and bodily autonomy.

Descheduling marijuana is a means to shrinking the size and power of government, so one would think it would resonate with small-government conservatives as well.

It is deeply ironic that the Republicans continually tout personal freedom and smaller government while advocating for policies that require mass surveillance, destruction of medical privacy and expansion of the prison state.

Deb Tharp is head of legal and policy research at NuggMD, the largest telehealth platform for cannabis. She can be reached at debbie@getnugg.com.