A 'President Bernie Sanders' could end the federal marijuana ban without Congress -- here's how

The Democratic 2016 contender has urged an end to US opposition to the substance.

When Vermont senator Bernie Sanders called for an end to federal marijuana prohibition this week before an audience of college students, he went further than any major national presidential candidate before him.

“It’s the first time a presidential candidate has made such a forthright statement on legalization,” said Michael Collins, deputy director at Drug Policy Action. “[It’s a] a fairly big nail in the coffin of prohibition.”

But that’s not the only reason his declaration was significant. While many proposals from Sanders and other candidates may not actually come to fruition under any president because they rely on the cooperation of Congress, ending federal prohibition is something a President Sanders could achieve.

That’s because a process exists that requires only the executive branch of government.

Even though public backing for legalizing marijuana is at an all-time high – a recent Gallup poll found 58% of Americans now in favor – only a handful of lawmakers in Congress currently support legalization or leaving the matter to states.

Related: Marijuana businesses voice fear of a Republican president

During his remarks at a student town hall at George Mason University Wednesday night, Sanders said: “In my view, the time is long overdue for us to remove the federal prohibition on marijuana. States should have the right to regulate marijuana the same way that state and local laws now govern the sale of alcohol and tobacco.

“Too many Americans have seen their lives destroyed because they have criminal records as a result of marijuana use,” Sanders said to loud applause. “That is wrong. That has got to change.”

Right now, the federal government considers marijuana a Schedule I drug, a classification under the Controlled Substances Act reserved for substances like heroin with high potential for abuse and no accepted medical uses. “That is absurd,” Sanders said of the classification.

To ease this designation, marijuana could either be “rescheduled” to Schedule II through V, all of which would allow at least some more discretion to prescribe and regulate the substance. It could also be removed from the Schedule altogether.

These actions could be achieved by Congress. But they could also be achieved through the attorney general and several executive agencies.

“In a nutshell, administrative rescheduling begins when an actor – the secretary of Health and Human Services or an outside interested party – files a petition with the attorney general or he initiates the process himself,” John Hudak, a Brookings Institute fellow in Governance Studies, and research assistant Grace Wallack wrote earlier this year.

After this petition has been filed, it is considered by the Food and Drug Administration, but could also be examined by the Drug Enforcement Administration. After receiving one or both reviews, the attorney general can recommend rescheduling marijuana or removing it entirely from the federal government’s control. If she decides such a move is warranted, the federal rule-making process is initiated, in which public input is sought and the president makes a final determination on whether to execute the proposal.

Removing marijuana from the Schedule wouldn’t legalize marijuana on a national level, but removing the federal prohibition and officially kicking the matter to states would “be a huge boost to the movement”, Collins said.

Other Democratic presidential contenders, as well as nearly half the Republican field , have said they are willing to let states that have chosen to legalize marijuana, including Colorado, Washington, Oregon, Alaska, and Washington DC, continue to do so.

Former Maryland governor Martin O’Malley has also called to move marijuana from a Schedule I to a Schedule II drug, which would ease some restrictions.

But only Sanders seems to be advocating taking marijuana off the Schedule entirely, although campaign staff did not respond to a Guardian request to clarify his position.

Ending the at least nominal federal prohibition on marijuana may sound similar to the positions of some other candidates, but Collins explained why it’s so important for the legalization movement.

“Marijuana businesses are governed by state law, but banks are governed by state and federal law,” he said. “They are not comfortable taking marijuana money right now because of that.” If pot were no longer illegal on a federal level, though, banks would be free to work with marijuana businesses on everything from deposits to loans. Such a policy shift would also allow currently blocked research into potential health benefits of marijuana to proceed, and potentially allow doctors to prescribe marijuana.

Sanders alluded to this banking problem in his remarks, saying, “Recognized businesses in states that have legalized marijuana should be fully able to use the banking system without fear of federal prosecution.”

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