

Holder says fixing marijuana laws is Congress' job. But according to the Controlled Substances Act, it's his. (AP Photo/Pablo Martinez Monsivais)

The crowning inconsistency of the federal drug control system has always been the classification of marijuana as a Schedule 1 substance under federal law, which makes it among the Worst of the Worst drugs as far as the DEA is concerned -- literally as bad as heroin, and worse than cocaine! Drug reform advocates have pushed the DEA to change its position for years, citing decades of research on the relative harmlessness of weed compared to other drugs -- including alcohol -- but the agency hasn't budged, even as public opinion has rapidly evolved.

The Controlled Substances Act, which set up the drug schedules in the early 1970s, explicitly places drug scheduling authority in the hands of the attorney general, and even instructs him or her to "remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule."

Much to the chagrin and outright befuddlement of drug law reformers, however, outgoing attorney general Eric Holder has repeatedly stated that any changes to the scheduling status of marijuana should be made by Congress.

In an interview with the just-launched Marshall Project, a non-profit news outfit covering criminal justice issues, he said, "I think the question of how these drugs get scheduled and how they are ultimately treated is something for Congress to work on." This echoes remarks he made in a September interview with Katie Couric, when he said that federal marijuana decriminalization was something for Congress to decide.

As Firedoglake's Jon Walker noted yesterday, it's strange that Holder is trying to punt this issue to Congress while the Obama administration is testing the limits of executive authority elsewhere: "It is just mind boggling that while the Obama administration is looking at ways to stretch their legal authority to use executive actions to get around Congress on issues, like the environment and immigration, they would still refuse to move forward on the one issue where they are so explicitly given the power to act under current law," Walker writes.

The DEA had no problem acting unilaterally to move hydrocodone products up from Schedule III to Schedule II earlier this year. It also added the previously-unscheduled synthetic opiate tramadol to the drug schedule. So Holder's conspicuous deference to Congress on marijuana is puzzling.

Cautious politicians often espouse a "wait-and-see" approach on marijuana reform. But on the scheduling issue, Holder's going beyond wait-and-see and saying, essentially, that it isn't even his job. Even though the Controlled Substances Act states, explicitly, that it is his job!

The administration asking Congress to take up the issue is especially strange when you consider that earlier this year, a bipartisan group of congressmen asked the administration to literally do the same thing. In essence, the Justice Department and Congress are both begging each other to fix federal marijuana laws, but nobody's doing anything.

Welcome to Washington in 2014.