Sanders' Plan to Legalize Marijuana Is More Complicated Than It Seems

Mona Zhang

Democratic presidential candidate, Sen. Bernie Sanders, I-Vt., addresses the media outside the Olde Walkersville Pharmacy, Sunday, July 28, 2019, in Windsor, Ont. (AP Photo/Carlos Osorio)

Vermont Senator and Democratic Presidential candidate Bernie Sanders told Joe Rogan he would legalize marijuana by executive order in a podcast interview gone viral. The host of The Joe Rogan Experience was trending on Twitter on Wednesday thanks to his deep dive into a nuanced discussion about Sanders' policy proposals. But the presidential hopeful's plan to legalize marijuana by executive order is more complicated than it sounds.

Sanders has long supported federal marijuana reform, describing its classification as a Schedule I substance alongside heroin as "insane."

"You can argue the pluses and minuses of marijuana, but marijuana ain’t heroin. So we have to end [marijuana prohibition] and that’s what I will do," Sanders told Rogan. "As President of the United States, I believe we can do that through executive order, and I will do that."

So can the U.S. president really legalize marijuana with the stroke of a pen?

The short answer is: Yes, the president can issue an executive order to remove marijuana from the Controlled Substances Act (CSA). But the process of doing so is a complicated, bureaucratic affair.


"The president would have to use the order to direct his Attorney General to start the process, [and] the Attorney General then makes the request to the Department of Health and Human Services to undergo a review on whether or not the substance belongs on the list of scheduled substances," said Erik Altieri, executive director of National Organization for the Reform of Marijuana Laws, a cannabis advocacy group.

"After that review, the department would then report their findings back to the Attorney General who makes the final decision."

Historically, federal agencies like the U.S. Food and Drug Administration and the Drug Enforcement Administration have maintained that marijuana belongs in the Schedule I category. But the nation's top law enforcement officer may not necessarily have to follow their guidance.

"[The Attorney General] must have autonomy to nonetheless alter the schedule despite such FDA determination, if 811 is to have any meaning at all," said David Holland, an attorney who was worked on cases challenging marijuana's Schedule I status.

Holland is referring to a federal law – U.S. Code 811 – that gives the Attorney General the power to "remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule."

The Attorney General can then start an administrative rulemaking process to remove marijuana from the CSA.

Despite its dysfunction, legalizing marijuana through Congress might be easier than going through the executive branch. There are currently more than 60 marijuana-related bills in Congress now.

Given that a majority of states have reformed their cannabis laws, Congress is feeling more pressure than ever to address the federal-state conflict on marijuana. Lawmakers are only getting more friendly to federal reform.

"Possibly more important than seeing the executive process through until the end, if a President Sanders were to make his intentions clear on this topic it would apply additional pressure on Congress to act," said Altieri.