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This week, the Trump administration signaled two very different approaches to the country’s long, winding war on drugs. On Monday, President Donald Trump signed an executive order declaring illicit fentanyl, and the chemicals used to produce it, as a “weapon of mass destruction,” in an explicit escalation of the rhetoric on the nation’s opioid crisis. Then, on Thursday, Trump signed another order directing federal agencies to loosen some federal restrictions on marijuana.
Fentanyl and cannabis aren’t comparable substances, pharmacologically, and the administrative mechanisms in play are quite different. But both moves raise similar practical questions: When the government changes how it categorizes a drug on paper, what changes in the real world?
The idea of designating fentanyl as a “weapon of mass destruction” is not new. In 2019, the military publication Task and Purpose reported that an internal Department of Homeland Security memo floated the idea of treating the drug as a WMD “when certain criteria are met.” The theory was that fentanyl’s potency and availability could make it an attractive tool for terrorists or criminals seeking “nonconventional material” for a chemical weapon attack.
But even in the national security world that case has long been contested. That same year, John P. Caves Jr., a WMD researcher at the National Defense University, concluded that while fentanyl compounds could theoretically be used as chemical weapons, “it is not evident that there is any basis or need for, or net benefit to, officially designating fentanyl compounds as weapons of mass destruction.” He warned that such a designation could create collateral problems for the legitimate fentanyl trade and use.
Still, the spectre of weaponized fentanyl has attracted concern from across the political spectrum, including from Massachusetts Democratic Sen. Ed Markey in 2019, and a legislative proposal from Colorado Republican Rep. Lauren Boebert earlier this year. In 2022, a bipartisan group of 18 state attorneys general asked the Biden administration to designate fentanyl as a WMD, citing similar concerns about weaponization. The administration declined. Rahul Gupta, then-director of the Office of National Drug Control Policy, told reporters at the time that “simply designating it — or any drug — as a ‘WMD’ would not provide us with any authorities, capabilities, or resources that we do not already have and are already applying to this problem,” the drug policy newsletter Substance reported.
The Trump administration has evidently come to a different conclusion. On paper, the administration didn’t create any new laws about drug use or trade or designate new funding. Rather, the executive order instructs federal agencies, including the Departments of Justice, State, Treasury and War (née Defense), to pursue fentanyl-related crimes more aggressively, and to explore military cooperation with civilian law enforcement.
In theory, the order could allow for harsher sentencing in federal drug cases, according to The Atlantic, as the use of a WMD in the U.S. carries a maximum sentence of life in prison. Another likely downstream effect is financial and diplomatic pressure abroad: The Washington Post reported that the designation could help the U.S. target foreign financial institutions — particularly in China — connected to the manufacture of chemicals needed to make fentanyl.
Many experts and media observers have characterized the move primarily as a symbolic and rhetorical one — a PR stunt. On X, former Libertarian congressman Justin Amash — now a Republican — called the move “just the latest example of the state twisting the plain meaning of words to expand its power.”
In that vein, some observers also see the executive order as an effort to bolster the legal case for the administration’s campaign of lethal strikes on alleged narco-trafficking boats. The campaign has killed at least 99 people since September, and many analysts say it is illegal under international law. Tess Bridgeman, a former National Security Council deputy legal adviser and the co-editor-in-chief of Just Security, told me that “no additional label or designation — of people or of drugs — can transform the situation into an armed conflict or otherwise make the use of military force lawful when it plainly is not.”
Meanwhile, on marijuana, the president has moved to expedite a very different kind of change in drug classification. It sounds sweeping at first, but in reality, it changes more for the cannabis industry’s bottom line than the architecture of prohibition.
Under the federal Controlled Substances Act, marijuana is currently placed in Schedule I, a category reserved for substances deemed to have “no currently accepted medical use.” That’s the most restrictive controlled substance category — more serious than where fentanyl is scheduled — and clearly at odds with at least 40 states that have legalized medical marijuana.
Trump’s executive order on Thursday prompts the Justice Department to hasten the rescheduling of marijuana as a Schedule III drug, alongside common prescription medications like Tylenol with codeine. The change was already underway via a formal rule-making process that began under President Joe Biden, including public comment and hearings that were scheduled for earlier this year, but then postponed. The Trump administration did not offer a timeline for when rescheduling might become official.
The change would allow medical and recreational dispensaries to deduct ordinary business expenses that are currently prohibited by the Internal Revenue Service. CBS News reported that some cannabis businesses pay effective tax rates of up to 80% due to these restrictions, more than three times the generally accepted U.S. average. Those businesses could find an easier time working with banks too, which have generally shunned the industry over concerns of prosecution — though simple rescheduling wouldn’t eliminate all those issues. As Trump noted in remarks at a signing ceremony, rescheduling marijuana would open up avenues for increased scientific research on the drug.
While Schedule III drugs can legally be prescribed, they still require Food and Drug Administration approval, which marijuana does not have, noted a congressional report on rescheduling. Thus, rescheduling alone would not instantly legalize the U.S. recreational or medical cannabis industry in the eyes of the federal government.
In theory, the order could reduce or eliminate some federal criminal penalties, like the punishment for advertising the sale of a Schedule I substance. Most federal penalties around the drug would stay the same, however, because most quantity-based elements of federal drug sentencing — like trafficking offenses — are tied to the specific drug, not just the schedule level, the same congressional report noted.
Even under current drug scheduling, federal prosecutors have not prioritized marijuana cases in recent years, especially with regards to activity legalized at the state level. As of January 2022, there was no one in federal prison who had been sentenced solely for simple marijuana possession. Marijuana trafficking cases — which generally involve moving hundreds or thousands of pounds — are also down nearly 60% since 2020, according to the U.S. Sentencing Commission.
Writing for The Guardian, legal analyst Kojo Koram argued in a column that while rescheduling marijuana would be revolutionary in some ways, it “does not dismantle the architecture of arrests, deportations, mandatory drug tests and exclusion from public housing, student loans and travel visas that were designed over the past few decades to enforce the criminalisation of cannabis.”
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