Why POTUS Should Take Reps. Mace and Lee's Proposal for UN to Deschedule Cannabis Seriously
By Shane Pennington
Mar 25, 2022
Reps. Nancy Mace (R-SC) and Barbara Lee (D-CA) recently filed a resolution imploring President Joe Biden to push the United Nations (UN) to remove cannabis from the list of controlled substances in the Single Convention on Narcotic Drugs of 1961, a multilateral treaty to which the United States is a party. Commentators are skeptical that President Biden will take such a proactive step given his record of championing punitive drug laws as a senator and continued opposition to domestic marijuana legalization. Even assuming they’re right about President Biden’s disposition toward marijuana, however, there may be a good reason for President Biden to take the bipartisan proposal seriously: To prevent the United States Drug Enforcement Administration (DEA) from placing hemp back on the federal Controlled Substances Act’s schedules.
Congress carved hemp, which it defined (roughly) as cannabis with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis, out of the definition of “marihuana” under the federal Controlled Substances Act in the 2018 Farm Bill. In doing so, Congress transformed hemp from a criminalized schedule I controlled substance into a fully legal agricultural commodity.
Notably, however, Congress did not amend another provision of the Controlled Substances Act—21 U.S.C. § 811(d)(1)—that arguably obligates DEA to reschedule much if not all hemp. Section 811(d)(1) provides that “[i]f control is required by United States obligations under [the Single Convention], [DEA] shall issue an order controlling such drug under the [Controlled Substances Act] schedule [it] deems most appropriate to carry out such [treaty] obligations.” Hemp—as the 2018 Farm Bill defines that term—is subject to control as “cannabis” under the Single Convention. Therefore, under § 811(d)(1), DEA must place it in the schedule of the Controlled Substances Act it “deems most appropriate to carry out” U.S. obligations under the Single Convention.
Generally speaking, DEA has deemed schedules I or II to be the most appropriate schedules for drugs subject to control under the Single Convention. DEA might therefore consider itself obligated to place hemp back on schedules I or II unless and until (1) Congress expressly abrogates U.S. obligations under the Single Convention or (2) cannabis is removed from the list of substances subject to control under the treaty.1
Some argue that “hemp” under the 2018 Farm Bill falls under the Single Convention’s so-called “medicinal” and “industrial” exemptions. If that’s right, then no express abrogation of U.S. obligations under the treaty was necessary to accomplish the 2018 Farm Bill’s goals. Yet, it’s not obvious that those exemptions cover all hemp removed from control by the 2018 Farm Bill. Start with the so-called “medicinal cannabis” exemption, which appears in Article 23.2(e) of the Single Convention:
The [national cannabis] Agency shall, in respect of [cannabis], have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers of [cannabis] alkaloids, medicinal [cannabis] or [cannabis] preparations. Parties need not extend this exclusive right to medicinal [cannabis] and [cannabis] preparations. (emphasis added).
Even if all “hemp” descheduled under the 2018 Farm Bill qualified as medicinal cannabis or a cannabis preparation (it doesn’t), that wouldn’t mean the Single Convention imposes no obligation on the U.S. to control hemp. As the underscored language above demonstrates, the medicinal exclusion relieves signatory states only of the obligation to give a single agency “the exclusive right of importing, exporting, wholesale trading and maintaining stocks” of the medicinal cannabis in question. Signatory states remain obligated to impose the controls required by Article 23.2(a)-(d).
And to be clear, the U.S. does not impose those controls in the 2018 Farm Bill. To take just one example, the 2018 Farm Bill establishes a cannabis production regime overseen by a bevy of state and federal agencies despite the fact that the Single Convention demands that “[t]he governmental functions referred to in paragraph [23.2] be discharged by a single government agency if the constitution of the Party concerned permits it.” Single Convention Art. 23.2. The U.S.’s current regulatory model for hemp violates this single-government-agency requirement.
Nor does the Single Convention’s “industrial” or “horticultural” use exemption permit the 2018 Farm Bill’s descheduling of all “cannabis” that qualifies as “hemp” the statute defines that term. Article 28.2 of the Single Convention provides a modest exemption for “the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.” (emphases added). Perhaps some hemp cultivation under the 2018 Farm Bill is exclusively for industrial or horticultural purposes, but some plainly is not.
In short, while the Single Convention’s medicinal and industrial exclusions might cover some of the cannabis that Congress removed from control through the 2018 Farm Bill’s exclusion of “hemp” from the Controlled Substances Act’s definition of “marihuana,” it may be a stretch to argue that those exemptions cover all “hemp.” And lest you think the concern I’m raising here is fanciful, the federal government recently hinted it doesn’t think so in briefing in an important case I’ll be arguing to the United States Court of Appeals for the D.C. Circuit next month on behalf of the Hemp Industries Association. See Resp. Br. 25 n.10, Hemp Industries Assoc. v. DEA, No. 20-1376 (D.C. Cir. Nov. 29, 2021) (noting DEA’s authority to reschedule hemp under § 811(d)(1) even after the enactment of the 2018 Farm Bill).
1 Roeder v. Islamic Republic of Iran, 646 F.3d 56, 61 (D.C. Cir. 2011) (legislative silence is not sufficient to abrogate a treaty, and thus “[a]n ambiguous statute cannot supersede an international agreement if an alternative reading is fairly possible” (citing Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 879 (D.C. Cir. 2006)); see also Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804) (“[A]n act of congress ought never to be construed to violate the law of nations, if any other possible construction remains ….”); Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 936-37 (D.C. Cir. 1988) (“[U]nless Congress makes clear its intent to abrogate a treaty, a court will not lightly infer such intent but will strive to harmonize the conflicting enactments.”).