abstract.

The United States has criminalized the manufacture, distribution, use, and possession of cannabis and its psychoactive components at the federal level since 1970. The states began to push back on national cannabis prohibition in the mid-1990s and, as a result, adult cannabis use is legal for various purposes in most of the states today. Ongoing federal cannabis criminalization, however, continues to threaten the viability of state legalization schemes. In response to forceful pleas for national reform, the federal government recently initiated rulemaking to reschedule cannabis—a rare Biden Administration reform that President Trump supported during his 2024 campaign. While the federal government’s proposed rescheduling scheme marks an improvement on national cannabis prohibition, it is woefully insufficient given the racist history of cannabis criminalization, the lack of evidence that justified the criminalization of cannabis in the first instance, and the widespread adoption of robust and complex state cannabis-legalization schemes over the last two decades. This Essay argues that the federal government should abandon its legally problematic rescheduling proposal and, instead, decriminalize and deregulate cannabis in a manner that ensures minimal interference with state cannabis legalization regimes and permits the states to implement their legalization schemes in ways that remedy the harmful and racist disparities wrought by cannabis prohibition.

Introduction

The United States has a long and complex legal relationship with the Cannabis sativa L. plant and its psychoactive components (cannabinoids).1 From the colonial period until the late nineteenth century, cannabis was a valued and widely cultivated industrial plant and cash crop.2 Cannabis also proved symbolically important to the nation’s Founding. The Pilgrims crossed the Atlantic Ocean with cannabis in tow, George Washington and Thomas Jefferson grew hemp,3 and it is popular American folklore that the Declaration of Independence and Constitution were written on hemp paper.4

Cannabis remained largely unregulated throughout the country until the early 1900s.5 The plant became subject to harsh federal regulation for the first time in 1937 on the heels of a successful nativist campaign to demonize cannabis.6 By 1970, Congress aggressively supported President Richard Nixon’s “war on drugs” by, among other things, criminalizing the cultivation, manufacture, distribution, prescription, and possession of cannabis.7

A handful of states decriminalized cannabis in the 1970s, but most quickly reversed course.8 The American drug war escalated over the following two decades.9 California, which was among the first states to criminalize the plant in the early 1900s,10 became the first state to legalize medical cannabis in 1996.11 Other states quickly followed California’s lead; today, medical cannabis is legal in over three-fourths of the states, while adult recreational cannabis is lawful in approximately half of the states.

Initially, the federal government forcefully resisted state cannabis legalization. Due to a lack of federal resources and the ever-escalating popularity of cannabis legalization in the United States, the federal government ultimately accepted a tenuous détente with the cannabis-legalization states by refusing to enforce cannabis criminalization in those jurisdictions as a matter of public policy. Most recently, in May 2024, the Biden Administration proposed a new rule that would reschedule cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA) and therefore render the cultivation, manufacture, distribution, prescription, and dispensation of the plant and its active components licit for medical use under certain circumstances.12 That rule has not yet been finalized and its ultimate fate remains unknown given that President Donald J. Trump has expressed varying public views on cannabis legalization over time.13 Most recently, President Trump expressed support for the Biden Administration’s proposed cannabis rescheduling reform and supported Florida’s 2024 recreational cannabis ballot initiative.14

Assuming, for the sake of argument, that the current rescheduling proposal remains viable in the Trump Administration, it would mark a marginal improvement on federal cannabis prohibition. But this Essay argues that it is profoundly insufficient for at least three reasons. First, given the known safety and risk profiles of cannabis in 1970, it was unscientific—and, frankly, outrageous—for Congress to place cannabis on Schedule I and thereby regulate it more strictly than substances like cocaine and methamphetamine. Second, the recent rescheduling proposal does nothing to decriminalize recreational cannabis use. It thus perpetuates, rather than mitigates, cannabis criminalization’s racist and nativist origins, as well as its longstanding and ongoing disparate impacts on Black and Brown Americans. Finally, the proposed rescheduling rule undermines federal-state comity given the massive uptick in state cannabis legalization over the last two decades. The proposed scheme largely leaves in place untenable federal-state conflict while creating additional, novel problems for legalization jurisdictions and cannabis businesses.

Simply stated, the cannabis rescheduling proposal is too little, too late. Instead, the federal government should decriminalize and deregulate cannabis. Part I of this Essay provides a brief history of cannabis regulation in the United States. It details the racist inception of the successful federal cannabis-prohibition campaign and the evolution of cannabis legalization at the state level over the prior two decades. Part II provides a detailed overview of the federal proposal to move cannabis from Schedule I to Schedule II of the CSA. Part III analyzes the positive legal implications of that federal proposal. Part IV examines the ongoing legal and regulatory obstacles that state cannabis businesses, medical-cannabis patients, and adult recreational users will continue to face post-rescheduling. Part V concludes the Essay by contending that the federal government should go beyond rescheduling. Instead, it should decriminalize and deregulate cannabis to minimize the myriad legal conflicts that its current proposal will exact on cannabis-legalization states and help close the door on our country’s longstanding, racist drug war.

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