Obama on legalizing marijuana by executive order: Hey, some jobs are reserved for Congress

I’ve said it before but it’s worth repeating: If you want to know what O thinks he can do unilaterally versus what he thinks simply must be handled by the legislature, you’re better off reading polls than reading law books. He went to war in Libya without consulting Congress because he thought, basically correctly, that there’d be no public backlash to an operation that involved no American boots on the ground. Two years later, boxed in by his own dopey “red line” rhetoric on Syria and facing a potentially messy intervention with no good guys for the U.S. to aid, he decided magnanimously to consult Congress before attacking. Immigration is the same thing in reverse. Two years ago, with the election just months away and his base watching, he decided he could issue a de facto amnesty for DREAMers by ordering DHS to exercise “discretion” in removing young illegals. Today, with fears of a backlash during the midterms if he went ahead and did the same thing for the rest of the illegal population, he’s decided that immigration reform can and must be addressed by Congress. Whether that position will hold or whether he’ll have yet another change of heart about his executive authority after the election, only he knows.

War and immigration are two cases, though, in which he’s exercising power that he arguably doesn’t have. Are there any cases where the opposite is true, i.e. he pretty clearly does have the power to act unilaterally but insists that his hands are tied until Congress does something? Why, yes: On marijuana, as Jacob Sullum explains. Generally speaking, the president can lawfully act by executive order if he’s acting under a power granted to him by the Constitution or a power delegated to him by Congress. As it happens, Congress did delegate an important power to him (or, more specifically, to the Attorney General) when it passed the Controlled Substances Act — the power to classify, or declassify, particular drugs as substances sufficiently dangerous that the federal government should control them. See section 811(a) at the last link; section 811(b) requires the AG to seek the opinion of HHS on the substance’s medical/scientific benefits and harms, but the final decision apparently is ultimately his. (Unless, that is, HHS says the substance shouldn’t be controlled, in which case the AG is bound by that finding.)

If O’s not prepared to go the full nine yards on declassifying marijuana, he and Holder could at least move marijuana to a lower “schedule” than the Schedule I classification it has now. See Section 812(b)(1) for the relevant factors. It’d be easy to argue for moving weed to Schedule III, but why would O want to make that argument when he could boot this very contentious issue to Congress? (Imagine how angry pharma lobbyists would be with Democrats if the president blindsided them with an EO legalizing pot.) Nothing wrong with an executive deferring to the people’s representatives, even when he’s authorized to act on his own, but there’s really no rhyme or reason to O’s vacillations on presidential power. Except the polls, of course.

In lieu of an exit question, read Politico’s deep dive into Obama’s verrrry broad use of executive authority to shape the law in all sorts of ways you’re not paying attention to.