The Buffalo News reported that the Cuomo administration has requested that the federal government grant a “waiver” to allow the state to import CBD-high cannabis strains from other states for use by children with severe epilepsy. (I note that the article says that it obtained copies of the letter; I would love to see them.)

If so, this development is quite incredible.  Of all the possible solutions Cuomo could pick, asking for a waiver from the federal government seems the most complicated and least likely to yield prompt results. The state legalization laws are all premised to some extent on the idea that states should be able to determine for themselves whether to allow the use of cannabis for medical purposes within their borders, presumably under the Tenth Amendment.  However, instead of allowing cannabis cultivation by individual patients or caregivers or allowing manufacturers from other states with relevant experience in manufacturing high-CBD strains to open up here on an expedited basis, New York is asking the federal government to allow it to obtain cannabis from across state lines. The federal government’s authority to regulate interstate commerce is explicitly stated in the Constitution and is the exact Constitutional basis for federal drug laws. In other words, Cuomo has just thrust his sword directly into the very heart of the conflict between state and federal law by asking the federal government to recognize that cannabis has a currently accepted medical use in treatment in the United States – which the United States Drug Enforcement Administration has refused to do for forty years.

What would be the basis for requesting that the DEA allow a cannabis manufacturer located in Colorado, Washington, Oregon or California to send cannabis flower, an extract or a cannabis-infused product across state lines?  Only because the purchaser seeks to use the cannabis/cannabis product for medicinal purposes, I must assume. What then does the DEA say? The DEA steadfastly maintains that cannabis has no medical use, no matter what the states say, so its response must be to deny the request for a permit interstate traffic in cannabis. It seems to me impossible that the DEA could (a) permit cannabis to travel in interstate commerce for the intended purpose of being used as a medical treatment but also (b) maintain that cannabis has no medical use and must remain in Schedule I.

(Not having seen the letters I assume that New York State is the proposed purchaser. Perhaps if a state government itself wishes to purchase cannabis from a source outside of the state the DEA must apply some different standard to the application – e.g. perhaps the State need not justify its acquisition of cannabis. I don’t know.)

Cuomo’s application for permission to import cannabis will likely require that the federal government restate its basis for denying that cannabis has any use in medical treatment – or acknowledge that it must defer to a state government’s determination that cannabis has a medical use and grant permission. The last attempt to challenge the DEA’s classification of cannabis ended in failure but Cuomo has potentially reopened this issue from a different direction.

In his second term Obama has made it abundantly clear that he is ready to let cannabis legalization go forward if given the political cover. The fact that technically the DEA Administrator and other agency employees work for the President of the United States is not really significant – the DEA is essentially a domestic intelligence agency that answers to no one. If the President uses this opportunity to order the DEA to stand aside and allow cannabis to travel in interstate commerce it will be the most radical evolution in the history of United States drug control to date. If the DEA denies the application and the President doesn’t countermand it there may be a new opportunity to challenge the DEA’s position in Court without the need to bring a new petition to reschedule cannabis.