Executive Action and Marijuana Legalization: What a President Can Do Without Congress

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Recently on the podcast High Spirits: The Cannabis Business Podcast, I discussed how cannabis legalization can occur through executive action, not just congressional action. This post will expand on what we discussed on the podcast.

My co-founder, Amna Shamim, and I started Project Four 2029 to engage with presidential and congressional candidates ahead of the 2028 election and educate them about the different paths to cannabis legalization and reform. For presidential candidates, that means explaining what can be accomplished through executive action. For congressional candidates, it means explaining how Congress can respond by passing comprehensive cannabis reform.

This may sound like a pipe dream, but it is not. Under the Trump administration, much has changed. President Trump has greatly expanded the Unitary Executive theory of governing and the President's authority to direct executive agencies. The Supreme Court has largely blessed these actions, except with respect to presidential authority over the Federal Reserve. Combine that with the Supreme Court's holding that the President is immune from prosecution for official acts as President and the President's pardon power, and the result is an extraordinarily powerful executive branch with substantial authority over federal agencies.

We are seeing this firsthand under Trump II. Below, I outline ways a future President (or President Trump) could use executive authority to substantially change federal cannabis policy, including actions that could push Congress toward permanent reform.

Much of this post draws from the Key Issues sections of Project Four 2029.

A warning on executive action

Before discussing the opportunities available to a future President, two warnings are important.

First, anything accomplished through agency action can potentially be reversed by a later administration or struck down by the courts. Executive action is therefore a stop-gap solution to a long-term problem. Ultimately, Congress needs to settle federal cannabis policy through comprehensive legislation.

Second, descheduling marijuana without regulation is not the answer. As we are seeing in Thailand, removing cannabis from prohibition without simultaneously creating an effective regulatory system can give prohibitionists ammunition to demand renewed restrictions. It’s basically one step forward and two steps backwards. The goal should not be an unregulated market. It should be a regulated cannabis market in which consumers can enjoy cannabis with the same liberties as those afforded to alcohol consumers.

What is the difference between this executive action proposal, and the Attorney General's medical marijuana final order?

The principal difference is that this approach has stronger legal foundations supported by existing statutes and regulations rather than the Attorney General’s final order rescheduling medical marijuana, which greatly expands on the language in 21 U.S.C. 811(d)(1). The Acting Attorney General had good intentions when he moved state-legal medical marijuana into Schedule III. It remains unclear, however, whether the method used will accomplish its intended purpose.

As I have discussed in several prior blog posts, the final rule issued in April 2026 has two major flaws:

First, it targeted the wrong thing. Under 21 U.S.C. § 811(d)(1), the Attorney General may reclassify a drug when necessary to satisfy United States obligations under international treaties. The statute applies to a substance, not 41 separate state programs. Yet the rule effectively rescheduled individual state medical marijuana programs rather than marijuana itself. Even under a more liberal reading, the rule effectively rescheduled hundreds of distinct marijuana substances, encompassing every product sold through state-legal medical marijuana programs. That stretches the statute beyond what it appears designed to authorize.

Second, the DEA moved into territory that belongs to the FDA. Determining what qualifies as a drug or medicine is not primarily a DEA function. That responsibility belongs to the FDA and, in certain circumstances, to a United Nations commission responsible for international drug policy under 21 U.S.C. § 811(d)(2) through (4). By acting without sufficient FDA involvement, the DEA assumed a role that should belong to federal health regulators.

A better path was available. The Attorney General could have issued a final rule moving marijuana itself into Schedule III, either by completing the process begun during the Biden administration or by invoking authority under § 811(d)(1). The Attorney General could then have worked with Secretary Kennedy and the FDA to develop more detailed regulations that formally incorporate state-legal medical marijuana markets into a federal framework. Coordinated action between the DEA and FDA would create a framework that is more durable and easier to legally defend.

A fix for all cannabis reforms

I want to start this section with the premise that the federal distinction between hemp and marijuana makes little policy sense. The distinctions that should matter are intoxicating versus nonintoxicating, consumable versus non-consumable, and industrial versus nonindustrial. Federal policy should be source agnostic and focus on the characteristics and intended use of the finished product rather than whether the product originated from legally defined hemp or marijuana.

Others have promoted similar approaches, including Strategies 64 in its One-Plant Solution White Paper. Yet we repeatedly hear that a one-plant solution is politically impossible and that Congress can only pass hemp reform. I reject that premise.

The advantage of the executive approach described here is that it does not depend on resolving that political debate first. Whether the objective is reforming adult-use marijuana, intoxicating hemp, medical marijuana, or another part of cannabis policy, executive action provides potential pathways forward. While this post focuses on cannabis policy, there is no reason why this would not also work for psychedelic policy.

Scientific pilot programs

Scientific pilot programs may offer the strongest mechanism for achieving major cannabis reform through executive action. The process described below for medical marijuana, and the approach the DOJ and DEA should have used, could be adapted to almost every major category of cannabis reform. Once the framework exists, it can be replicated for different programs.

These programs would do more than change policy. They would allow state and federal governments to study how different cannabis regulatory systems affect public health, public safety, economic activity, and society. The resulting evidence could then inform permanent cannabis laws.

Medical marijuana

Once marijuana is placed in Schedule III, the DEA has several potential ways to regulate state medical marijuana programs, each of which require FDA involvement.

One option is to permit state-licensed medical marijuana businesses to register with the DEA, similar to what is occurring under the Medical Marijuana Final Order.

Another option would use the DEA's authority under 21 U.S.C. § 872(e) to waive registration requirements. Rather than requiring individual DEA registrations, the agency could potentially recognize businesses licensed by participating states and authorize them to possess and distribute medical marijuana. This would avoid the unusual current situation in which the DEA effectively recognizes state regulatory authority while DEA agents remain responsible for enforcing conflicting federal law.

The FDA's participation is essential with both of these options because it has legal authority over medical products. The DEA and FDA could create a framework under which each participating state submits its medical marijuana program through an Investigational New Drug application ("IND"). This would also provide a lawful pathway for marijuana distributed through an IND program under the Food, Drug, and Cosmetic Act (“FDCA”). That is an important distinction because hemp products lack such a pathway today, and state-legal medical marijuana would remain outside the FDCA framework even if the Attorney General's final order survives D.C. Circuit review.

Under 21 C.F.R. § 312.10, the FDA can waive certain IND application requirements when it determines that doing so would not create a significant and unreasonable risk. The regulation therefore recognizes that some degree of risk may be acceptable when justified by the circumstances.

Could the FDA reasonably reach that conclusion for state medical marijuana programs? I believe it could, easily. Research indicates that many people reduce their alcohol consumption after beginning to use marijuana (as discussed in Marijuana is Safer than Alcohol at Project Four 2029). Given that excessive alcohol use causes roughly 488 deaths every day in the United States, substitution away from alcohol provides an important public health benefit.

Through a coordinated IND process, the DEA and FDA could formally recognize state medical marijuana programs within the FDA's existing drug research framework. Doing so would provide a stronger legal foundation for the resulting regulatory structure than exists under the AG's state legal medical marijuana final order.

Federal law already provides multiple pathways for scientific research. Those same pathways could support different legal cannabis markets through pilot programs involving medical marijuana, adult-use marijuana, social equity programs, and intoxicating hemp.

The sequence would be straightforward. First, move marijuana into Schedule III (that could be accomplished once the ALJ/DEA process concludes). Then, have the DEA and FDA jointly establish scientific pilot programs to study state medical marijuana systems, patient outcomes, and the broader consequences of legalization.

Adult-use marijuana

The same basic framework could apply to adult-use marijuana. The executive branch could direct the DEA and FDA to establish scientific pilot programs studying legal recreational marijuana markets throughout the United States. These programs could examine which regulatory policies produce particular outcomes before the federal government creates a permanent national system. Among other issues, the research could examine public health outcomes associated with substituting marijuana for alcohol or tobacco.

Intoxicating hemp

The same process could be applied to intoxicating hemp products. Pilot programs could compare intoxicating products derived from hemp with comparable products derived from marijuana and examine how intoxicating hemp is used and regulated in states where it is legal. The resulting research could help federal regulators better understand whether meaningful differences exist between these products and how they should be regulated based on their characteristics and risks rather than the source of the cannabinoid.

Industrial hemp

Scientific pilot programs could also support development of the industrial hemp industry, although they are not the only available executive mechanism. Congress must authorize most federal spending, but as this Administration has shown, the President can redirect spending. A future administration could direct substantial funding within the Department of Defense towards eligible industrial hemp projects. That flexibility could accelerate research into new hemp technologies, materials, and industries.

Industrial hemp has the potential to compete with materials and products derived from petroleum, cotton, plastics, and certain pharmaceutical applications. Existing research suggests that hemp can substitute for some less sustainable materials. Additional research, investment, and government support could help launch industrial hemp into a commercially competitive industry within the American economy.

Social equity considerations

Scientific pilot programs could also be used to evaluate social equity initiatives. The DEA and FDA could coordinate with agencies such as the Small Business Administration to test different approaches across participating jurisdictions. These programs could examine which policies expand business opportunities and produce sustainable outcomes, providing evidence that could guide future federal legislation and regulatory policy. Further, it would provide small cannabis operators with access to SBA benefits.

International treaty implications of rescheduling marijuana

For years, I have argued that creating a federal medical marijuana program could bring the United States into better alignment with its obligations under the international drug control treaties.

In 2020, the United Nations Commission on Narcotic Drugs voted to remove cannabis from Schedule IV of the Single Convention. Cannabis remained in Schedule I, but its removal from Schedule IV was significant because it reflected international recognition of cannabis's therapeutic uses. The international drug treaties also contemplate access to controlled substances for scientific purposes.

Recognition of marijuana's medical value is only part of the analysis. Countries around the world have established medical marijuana programs that resemble state programs operating in the United States. Germany provides one prominent example of a liberal and expansive national medical cannabis system operating within the international treaty framework.

Because the treaties expressly permit medical uses of cannabis, they provide a foundation for DEA and FDA pilot programs involving state-legal medical marijuana. Adult-use marijuana presents a more complicated question.

Switzerland and the Netherlands have established adult-use scientific pilot programs that operate within the international drug control framework. The International Narcotics Control Board has criticized aspects of these programs, but its enforcement authority is limited. European institutions have also permitted these experiments to proceed. Scientific pilot programs could therefore provide the United States with a framework for bringing existing state cannabis markets into closer alignment with its treaty obligations. The federal government would also begin reporting data from participating state programs to the International Narcotics Control Board, providing international organizations with a more complete picture of how those state markets operate.

That is particularly important because the existing divide between federal prohibition and state legalization has itself created longstanding questions about United States treaty compliance. Bringing state-legal marijuana programs into structured scientific pilot programs could allow the United States to better address its international obligations without dismantling the state markets that already exist.

Descheduling

The executive branch cannot simply order the DEA to remove marijuana from the Controlled Substances Act. It can, however, initiate the administrative process that could produce that result.

The President could direct HHS to conduct a new scientific review of marijuana within a defined period, such as one year. That review could specifically compare marijuana's health effects and risks with those associated with alcohol and tobacco. As discussed on Project Four 2029's Marijuana is Safer than Alcohol page, the available evidence should support the conclusion that marijuana presents lower risks than alcohol and tobacco in key respects. If HHS ultimately concludes that marijuana should no longer remain controlled, it would then recommend that the DEA remove marijuana from the Controlled Substances Act and regulate it under a different federal framework. Under 21 U.S.C. § 811(b), if HHS “recommends that a drug or other a substance not be controlled, the Attorney General shall not control the drug or other substance.” (emphasis added)

At the same time, the DEA and other appropriate agencies could develop proposed regulations designed to take effect alongside a descheduling order. Those regulations could establish a federal framework governing the production, distribution, sale, and regulation of marijuana after its removal from the CSA. This could arguably run up against the same legal challenge that I believe will kill the current medical marijuana final order. But, thankfully most states have their own frameworks, so this would be particularly important only for those states that don’t. This is another reason why this whole strategy is aimed at forcing Congressional change.

Creating a regulatory system alongside descheduling could provide a more orderly transition while increasing pressure on Congress to enact permanent legislation establishing a comprehensive national cannabis market.

Final thoughts on executive action and marijuana rescheduling

Congress remains the only institution capable of providing a truly permanent solution to federal cannabis policy. But that does not mean a President must wait for Congress before pursuing meaningful reform. Existing federal statutes and regulatory authorities provide potential mechanisms for the executive branch to reshape cannabis policy. A future administration could move marijuana through the scheduling process, establish scientific pilot programs for medical and adult-use marijuana, and intoxicating hemp (or better yet, just intoxicating versus non-intoxicating cannabis products), study social equity initiatives, invest federal research resources in industrial hemp, and begin an administrative process aimed at descheduling.

None of these measures should be viewed as a substitute for comprehensive legislation. Executive action is inherently less durable because a future administration or the courts may reverse it. But executive action can change the status quo, demonstrate that workable regulatory alternatives exist, and create pressure for Congress to finally enact comprehensive cannabis reform.

The question is therefore not whether the President can do anything without Congress. The question is how far existing executive authority can lawfully be pushed while building a regulated system that Congress can ultimately make permanent. If you are a prospective 2028 presidential or congressional candidate, or working with someone who is, please feel free to make an introduction. And if you have questions or thoughts about specific cannabis policies that could be implemented using the strategies outlined above, please reach out. I would be happy to explore them in a follow-up post.

For more on marijuana rescheduling and the DEA rulemaking process, please check out these recent posts: