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

20 Pages Posted: 30 Sep 2020 Last revised: 12 Mar 2021

See all articles by Robert A. Mikos

Robert A. Mikos

Vanderbilt University - Law School

Date Written: September 29, 2020


Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election has shown that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several erstwhile 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. That policy is a mess, regardless of one’s views towards legalization. But proponents of reform need to recognize that Congress made this mess, and only Congress is capable of cleaning it up.

Keywords: marijuana, marihuana, cannabis, president, executive action, sanders, warren, schedule, de-schedule, delist, declassify, controlled substances act, enforce, election, attorney general, imperial, azar, trump, political, politics

Suggested Citation

Mikos, Robert A., POTUS and Pot: Why the President Could Not Legalize Marijuana Through Executive Action (September 29, 2020). Vanderbilt Law Research Paper No. 20-49, University of Cincinnati Law Review, Forthcoming 2021, Available at SSRN: https://ssrn.com/abstract=3701919

Robert A. Mikos (Contact Author)

Vanderbilt University - Law School ( email )

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HOME PAGE: http://law.vanderbilt.edu/faculty/faculty-detail/index.aspx?faculty_id=227

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