POTUS and Pot: Why the President Could Not Legalize Marijuana Through Executive Action

Abstract

Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election showed that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.

This Essay warns that such promises are both misguided and dangerous because they ignore statutory and constitutional constraints on the President's authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation.

To be clear, this Essay is not a defense of our current federal marijuana policy. Federal marijuana policy is a mess, regardless of one's views on legalization. But proponents of reform need to recognize that Congress made this mess, and only Congress can clean it up. Proponents of reform should resist the temptation to embrace the imperial presidency to serve their short-term policy goals, for there is much more at stake here than marijuana policy.

The Essay proceeds as follows. Section I sets the stage by discussing the growing interest in pursuing legalization via executive action. Section II then illuminates the current limits on the President's power to legalize marijuana. Finally, Section III explains why disregarding those limits is dangerous, and why marijuana reforms should run the gauntlet that is our national lawmaking process-even if that means we are stuck with an outdated federal marijuana policy for some time.