Congressional Researchers Say It’s ‘Likely’ Marijuana Will Be Rescheduled, But It Wouldn’t Fix Federal-State Policy Gap

It “appears likely” that the federal government will reschedule marijuana, congressional researchers say in a new report. But Congress still has the authority to address the federal-state cannabis policy gap “before or after” that reform is enacted.

Days after the Justice Department announced that it was moving forward with plans to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA), the Congressional Research Service (CRS) released a report outlining policy considerations for legislators.

“Given the current marijuana law and policy gap between the federal government and most states, there are a number of issues that Congress may address,” CRS said. “These topics include, but are not limited to, marijuana’s designation under the CSA, financial services for marijuana businesses, federal tax issues for these businesses, oversight of federal law enforcement and its role in enforcing federal marijuana laws, and states’ implementation of marijuana laws.”

“In addressing state-level legalization efforts, Congress could take several routes. It could take no action, in which case it appears likely DEA will move marijuana from Schedule I to Schedule III,” it said. “Congress could also enact marijuana legislation before or after DEA acts on rescheduling.”

CRS has repeatedly drawn attention to the policy gulf that’s widened as more states have moved to legalize marijuana. That won’t necessarily change if the federal government reschedules cannabis, which would not legalize it, but it does renew interest in possible legislative solutions.

“Although state laws do not affect the status of marijuana under federal law or the ability of the federal government to enforce it, state legalization initiatives have spurred a number of questions regarding potential implications for federal laws and policies, including federal drug regulation, and access to banking and other services for marijuana businesses,” the report says. “Thus far, the federal response to states’ legalizing marijuana largely has been to allow states to implement their own laws.”

CRS said that potential legislative options for Congress include implementing “more or less stringent marijuana control, ranging from pushing for federal law enforcement to dismantle state medical and recreational marijuana programs to limiting federal marijuana regulation through means such as appropriations provisions, to rescheduling or de-controlling marijuana under the CSA.”

“This last option would largely eliminate the gap with states that have authorized recreational and comprehensive medical marijuana,” the report says. “As Congress considers these questions, states may continue to act on marijuana legalization. No state has reversed its legalization of either medical or recreational marijuana at this time.”

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CRS also released a separate report last week asserting that, if the federal government reschedules marijuana as proposed by the Justice Department, the move would not legalize cannabis or bring state-regulated markets “into compliance.”

The report echoes points CRS made in a separate marijuana analysis published in January.

“Rescheduling or descheduling marijuana under the CSA could raise additional legal questions,” it said, noting the potential role of FDA in regulating cannabis products and the possibility of Congress establishing a regulatory framework for marijuana.

To that end, Senate Majority Leader Chuck Schumer (D-NY) and colleagues reintroduced legislation this week to federally legalize cannabis and impose certain regulations. The bill’s prospects are dubious in the current divided Congress, however.

Meanwhile, the top Democrat in the U.S. House said last week that the Biden administration’s move to reschedule marijuana is a “step in the right direction,” but it should be followed up with congressional action such as passing the legalization bill Schumer filed.

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Photo courtesy of Chris Wallis // Side Pocket Images.