Pot Luck: Feds Poised to Reclassify Marijuana

The politics of the latest step in the normalization of weed.

Tiara Artis, center, pulls on her joint of marijuana during a training event for officers to recognize impairment in users of the newly legal substance, in Gaithersburg, Maryland in early 2023. (Photo by Bill O’Leary / Washington Post via Getty Images)

ON TUESDAY, NEWS BROKE that the Drug Enforcement Administration is set to ease restrictions on the sale, possession, and use of marijuana, bringing an end to over half a century of its classification as a highly restricted Schedule I drug. In 1970, under pressure from President Richard Nixon, Congress passed the Controlled Substance Act (CSA), which established the drug classification system to control and regulate substances at the federal level. The CSA established harsher penalties for the sale or possession of a variety of drugs. Politically, the impetus for the CSA was the antipathy of Nixon and the “silent majority” toward the Sixties counterculture—those rotten hippies with their long hair and their hatred for America.¹ The new law was particularly overbearing in its targeting of one of their favorite drugs, putting marijuana in the Schedule I drug category, the most restrictive, and jail time for pot possession got upped in a major way.

A little over a half century later, the DEA is on the cusp of moving marijuana from Schedule I to Schedule III. Mind you, it will still be restricted and off-limits for recreational use as far as the feds are concerned, but among controlled substances, it would fall out of the LSD/heroin bucket and into the Tylenol with codeine/anabolic steroid bucket.

I wrote about the politics and the implications of this change a few months ago. Expect financial pluses for private market pot sellers in states that have already legalized marijuana; they will get new access to financial instruments that will help normalize their business, and they’ll also be able to deduct normal business expenses when calculating their taxes, something that has not been possible while their product has been a Schedule I drug.

But the more significant change is on the political level. With this reclassification, the federal government shows that it is finally catching up with the public.

In a Gallup poll of American adults from last fall, some 70 percent of the respondents said they thought marijuana should be legalized. Though older conservatives were less likely to support nationally legalized marijuana than younger progressives, surveys have shown that any way you want to delimit a demographic—whether by political party, age, gender, education, race, etc.—a majority of the group will be in favor of legalization.

That means marijuana could be in the political air in the leadup to the 2024 presidential election. As you might expect, former President Donald Trump’s comments on the issue have been muddled. He has occasionally supported some kind of legalization on the basis of an idea of states’ rights, but at other times he has opposed it because marijuana initiatives increase Democratic turnout in an election. We can expect him to avoid taking a stand—as he is attempting to do with another politically disadvantageous issue, that of abortion—but his residing in Florida is creating problems for him on both fronts: Abortion- and marijuana-related initiatives to amend the state constitution will be on the ballot there this November.

For his part, President Joe Biden has been relatively quiet on the pot question. He consistently championed “tough on crime” legislation during his more than three decades in the U.S. Senate, but we haven’t heard quite as much of that sort of advocacy during his term as president. (What he has offered is a chastened statement on the injustices that have resulted over the decades from “failed” U.S. drug policy.) Still, don’t be surprised if he raises marijuana rescheduling on the campaign trail in coming months.

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MARIJUANA RESCHEDULING is unlikely to be the most important driving issue in any states in the 2024 election—certainly not in the way abortion will likely be. But it could have some minor effects in some of the swing states. First, according to the Gallup poll, the Midwest region scores highest among regions with 75 percent in favor of legalization. Independent voters come in at 70 percent, and they will be key to states like Michigan, where it is already legal, and Pennsylvania and Wisconsin, where it is not (although the political pressures are beginning to be felt). Which is all to say that the DEA action could move the needle a few points to keep Democrats’ “blue wall” intact.

“People aren’t idiots on marijuana use and the changing laws, and it is a wildly popular and bipartisan issue,” Shane Pennington, an expert in the law related to marijuana, told me earlier this year. Biden “can tell voters his administration is helping the small businesses to get their taxes lowered, which makes the price of recreational marijuana cheaper, which in turn helps to hurt the illegal drug cartels operating in the U.S.”

Pennington’s comments show just how different things are today from how they were fifty years ago. The topline concerns are practical and economic, perhaps reflecting the fact that those disgusting hippies have become retiring baby boomers living in big houses in the suburbs alongside the more straitlaced of the peers of their youth. They never bought into the cynical charade that marijuana was the same as LSD. Now the government is poised to concede that they were right.

1. The campaign against drugs was also intended to target black people, according to comments Nixon aide John Ehrlichman made during a 1994 interview that were not published until 2016.