A Positive Sign For Schedule III

Editor's Note: This article originally appeared on "On Drugs," a newsletter produced by lawyers and well-known cannabis reform advocates Shane Pennington and Matt Zorn, and was republished with permission from the authors. 

Together and separately, Matt [Zorn] and I have warned that U.S. obligations under a United Nations treaty called the Single Convention on Narcotic Drugs of 1961 are one of the only remaining obstacles to moving cannabis to schedule III and taking the cannabis industry out of 26 U.S.C. 280E’s ambit. As we’ve explained, no matter how many people tell you that schedule III is a “done deal” and that 280E relief will be here before the next election, the reality is we have a long way to go. We don’t even have DEA’s proposed rule yet, and even if we did have it and knew that it proposed moving all cannabis to schedule III, these declarations of victory would still be premature. After all, the proposed rule is far from the end of the process. We would still have to navigate notice and comment, ALJ hearings, the final rule, and judicial review before any of this is a done deal. You know what they say about counting chickens when all you’ve got is eggs. 

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These comments struck me as bold and a bit surprising coming from the U.S. They seem to reject outright the INCB’s claims to “quasi-judicial” authority to monitor member state treaty compliance—particularly when it comes to those countries’ domestic policies. And the claim that the treaty’s focus is limited to drug-related issues “having an international dimension,” seems to underscore the point that member states’ domestic approaches to controlled substances are their own business.

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While I’m no expert in the history of U.S. interpretation and implementation of the Single Convention, I have studied the subject enough to know that we haven’t always viewed the Single Convention as agnostic to member states’ domestic laws. I’ve explained previously, for example, that when Harry Anslinger appeared before the U.S. Senate in 1967 to urge U.S. accession to the Single Convention, he sold it as a measure designed and intended to constrain U.S. domestic policy—namely the “disturbing” specter of state-level cannabis legalization. “Several groups in the United States [were] loudly agitating … to legalize [marijuana] use,” Anslinger warned. And because the Congress couldn’t (under prevailing precedent at the time at least) ban use and possession of cannabis outright at the federal level under the Interstate Commerce Clause, Anslinger urged the senators to use “treaty obligations to resist” their efforts:

Another important reason for becoming a party to the 1961 convention is the marihuana problem .... Several groups in the United States are loudly agitating to liberalize controls and, in fact, to legalize its use .... If the United States becomes a party to the 1961 convention we will be able to use our treaty obligations to resist legalized use of marihuana. This discussion is going on all over the country, in many universities, and in fringe groups, and it is rather disturbing.

Senate Comm. On Foreign Relations, Convention on Narcotic Drugs, 1961, S. Exec. Rep. No. 11, 90th Cong., 1st Sess. 20 (1967) (statement of H.J. Anslinger).

Of course, as legal scholars have recognized since, the Constitution doesn’t permit the president to increase Congress’s lawmaking power by entering into a treaty. Nevertheless, Anslinger succeeded in convincing the U.S. to accede to the Single Convention, and we’ve been in this “treaty trap” ever since. Very much aware of this issue and the potential obstacle it could pose to sensible cannabis reform, Matt and I wrote a law review article arguing that this arrangement is unconstitutional.

Notice, however, that Patt Prugh’s comments arguably sketch a different vision of the scope, purpose, and limits of the Single Convention and U.S. obligations under it. Her emphasis on the international focus of the treaty seems to reject Anslinger’s view of the treaty as a tool for overriding member state’s domestic policies (in the case of the U.S., state-level efforts to legalize cannabis). The same goes for her emphasis on the treaty’s “highly respectful” disposition toward “the legal frameworks of states parties, in particular their constitutional limitations.”

In short, as I listened to Patt Prugh’s comments, I couldn’t help but wonder whether she was laying the groundwork for a U.S. approach to the Single Convention designed to not thwart state-level cannabis legalization efforts but to accommodate them.

Of course, everything I’ve said here should be taken with a massive grain of salt. I’m reading a whole lot into a very short statement from a single State Department official, and she didn’t mention—much less defend—the ongoing administrative process to reconsider cannabis’s schedule I status under U.S. federal law. That said, given their substance and timing, I do think Patt Prugh’s comments should be viewed as a positive sign for schedule III’s supporters.