In the never-ending loop of federal marijuana reform debates, one crucial fact keeps getting overlooked: the Attorney General (AG) has the power to reschedule marijuana. Right now. No act of Congress. No HHS review. No rulemaking marathon. Just a signature.
Under 21 U.S.C. § 811(d)(1), the AG can unilaterally reschedule marijuana to better align U.S. drug policy with its international treaty obligations—specifically, the Single Convention on Narcotic Drugs (Single Convention). This isn’t legal speculation; it’s written into the Controlled Substances Act (CSA) itself. And unlike the current and traditional scheduling process under § 811(a)-(c), this route bypasses HHS and the need for any medical or scientific review.
There’s no need for complex rulemaking or an evidentiary record. All the AG has to do is believe that rescheduling marijuana to Schedule II, III, IV, or V better serves U.S. treaty obligations. Yes, the DEA would need to do some light follow-up rulemaking—but that’s been done before, and the Office of Legal Counsel has already signed off on it.
In other words: AG Bondi could reschedule marijuana tomorrow. All it would take is a press release and a pen.
Treaty compliance: the path is legally justified
The Single Convention (which refers to “cannabis,” not “marijuana”) requires that cannabis be “controlled” by member states to only medical, scientific, and industrial purposes. Such purposes must, however, ensure the availability of cannabis (not referenced specifically, but included in the definition of “drugs”) to patients for relief from pain and suffering. The Single Convention doesn’t mandate prohibition—it mandates regulation.
In 2020, the U.N. Commission on Narcotic Drugs voted to remove cannabis from Schedule IV—the most restrictive category—leaving it only in Schedule I. That vote acknowledged the therapeutic potential of cannabis (Scheduling under the CSA and scheduling under the Single Convention do not correlate with each other). And yet, marijuana remains in Schedule I of the CSA—a category reserved for substances with no accepted medical use.
That contradiction puts the U.S. out of step with its obligations under the Single Convention. Schedules II through V under the CSA each acknowledge medical efficacy. So, if the goal of § 811(d)(1) is treaty compliance, rescheduling isn’t just permissible—it’s arguably required. Importantly, § 811(d)(1) makes clear that only the AG’s judgment matters when making that call. No scientific support, Congressional approval, or public comment is required.
Litigation would be likely, but immediate benefits would follow
Yes, any such action would invite lawsuits. Some would challenge the AG’s authority. Others would argue that § 811(d)(1) unconstitutionally delegates domestic policymaking to international organizations. (Note: the arguments here would have less applicability, because criminal penalties would slightly reduce under rescheduling.)
But while litigation played out, rescheduling would still take effect—and IRC § 280E would no longer apply. That’s an immediate tax win for state-legal businesses. Because the statutory authority is so clearly laid out, it’s unlikely even the most skeptical judge would stay (pause) rescheduling through litigation.
But let’s not forget that future AGs could reverse course just as easily. That’s the real weakness of this shortcut—it lacks permanence. In fact, even if marijuana gets rescheduled via the full DEA/HHS process and lands in Schedule III, a future AG could use § 811(d)(1) to shove it right back into Schedule I. That’s why long-term reform can’t rely solely on executive action.
Congress: the only path to stability
Congressional action remains essential. It’s the only way to prevent policy from swinging with each administration. Congress can revise treaty obligations, override them, or exit them altogether. And unlike the executive branch, Congress can create a durable legal framework for marijuana that protects the industry from regulatory whiplash.
The States Reform Act 2.0 is currently the most viable legalization proposal in Congress. But it, too, has a gap: it doesn’t eliminate the AG’s authority under § 811(d)(1). A simple amendment could fix this by stating that § 811(d)(1) no longer applies to marijuana. Otherwise, even after Congressional action, a future AG could potentially reassert unilateral control (while such congressional action would likely prevail here, over the AG’s action, it would create confusion and uncertainty while litigation played out).
Theoretically, we could even see a similar situation with hemp play out. Because the 2018 Farm Bill removed hemp from the definition of marijuana—but didn’t reference § 811(d)(1)— the AG could, today, place hemp back into Schedule I.
If the marijuana industry wants true stability, with taxation and regulatory certainty, Congress must act—and act with specificity.
Lobbying has failed: political strategy must evolve
The marijuana industry has spent millions on traditional lobbying in the past six years. What do we have to show for it? Fragmented state markets, continued IRC § 280E applicability and enforcement, marijuana still in Schedule I, and a counterproductive research bill (the Medical Marijuana and Cannabidiol Research Expansion Act) that ultimately will makes things worse for researching marijuana.
It’s time to admit: the current approach to lobbying has failed.
The industry needs a new strategy—one grounded in political reality. That includes reassessing who gets paid, and for what. It’s uncomfortable, but worth saying: under the current administration, success might depend less on policy arguments and more on simply writing a check. Success means navigating the political system we have, while continuing to build back the one we want.
It sounds cynical. It is cynical. But it may also be true.
Conclusion
The power to reschedule marijuana already exists, but the industry’s path forward depends on more than legal authority. It requires political will. AG action could trigger immediate benefits, but only Congress can provide lasting certainty. Traditional lobbying has failed to move the needle, and it’s time for the industry to engage more strategically. If marijuana stakeholders want real reform, they must act decisively. Maybe it’s time for the industry to play the political game as it is, not as we wish it were.
