Forbes | The difficulty in finding an appropriate schedule for marijuana reflects a broader problem with the CSA’s classification scheme. If a controlled substance does not have an accepted medical use (however that’s defined), it has to go in Schedule I, even if it has a low potential for abuse and is safer than over-the-counter drugs such as aspirin, acetaminophen, or diphenhydramine. The only alternative is to take the drug out of the schedules entirely, which in the case of marijuana can be done only by Congress, given the CSA’s deference to the Single Convention, which allows medical use of cannabis but calls for strict regulation.
Although the DEA has the power to move marijuana from one schedule to another, it was Congress that put it in Schedule I to begin with. The CSA was not intended to regulate recreational intoxicants, which are banned unless Congress omitted them from the law’s schedules, as it did with alcohol, tobacco, and caffeine. The DEA’s assumption that all nonmedical use of marijuana constitutes abuse may be absurd, but it’s an absurdity that Congress demanded.