Robert Mikos

Professor of Law Vanderbilt University

  • Nashville TN

Expert in federalism and drug law, including marijuana legalization.

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While Marijuana Will Soon be Rescheduled, the Federal Government’s Drug Scheduling System Remains Tyrannical

Earlier this year, the Drug Enforcement Agency (DEA) announced that it would move marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA), greatly reducing the restrictions on the drug. It represents a historic change in federal marijuana policy and a watershed moment for generations of activists that have sought legalization on a national level. While many advocates believe the shift bodes well for efforts to relax controls on other Schedule I drugs—including promising psychedelics like psilocybin, MDMA, and LSD– Vanderbilt Law professor Robert Mikos argues that the marijuana rescheduling decision will not pave the way for rescheduling any other drug. Mikos explains that the decision preserves the barriers that make it virtually impossible to remove drugs from Schedule I. He labels those barriers the “tyrannies of scheduling.” In his paper “Marijuana and the Tyrannies of Scheduling,” forthcoming in Fordham Law Review, Mikos lays out the core challenges posed by the existing scheduling process and offers a solution that would lead to “more rational scheduling decisions that better reflect the benefits and dangers of controlled substances, as Congress intended.” The Role of Currently Accepted Medical Use in Scheduling Decisions The CSA creates five Schedules (I-V). Scheduling dictates how a drug is regulated under the statute. Schedule I drugs are subject to the most restrictive controls, and those controls are steadily relaxed as one moves down the schedules. Congress made all the initial scheduling decisions when it passed the CSA in 1970, but it also empowered the DEA, working in conjunction with the Department of Health and Human Services (HHS), to reschedule drugs based on new information acquired after the passage of the statute. Agency scheduling decisions are supposed to be based on three core characteristics of a drug: its abuse potential, its dependence liability, and whether it has a currently accepted medical use (CAMU). Unfortunately, these characteristics do not always suggest the same schedule for a drug. But as Mikos explains, the DEA has grossly simplified the scheduling process by suggesting that CAMU determinations should trump all other considerations. In particular, the agency has insisted that a drug with no CAMU must be placed on Schedule I, regardless of its abuse potential or dependence liability. According to Mikos, the DEA’s simplification of the scheduling process places tremendous weight on agency CAMU determinations and how the agency chooses to define this particular scheduling criteria. The Tyranny of Science In the past, the DEA insisted that the only way to demonstrate that a drug has a CAMU was by completing multiple controlled trials (RCTs) demonstrating that a drug is effective at treating some medical indication, the same requirement for new drug approval under the Food, Drug and Cosmetic Act. As Mikos has noted in his past work, completing such trials is “notoriously expensive and time-consuming,” requiring strict parameters and a large number of participants. The challenge is even more daunting for drugs already on Schedule I, because the CSA restricts research on such drugs. Due to regulatory restrictions, marijuana advocates have struggled to complete even a single RCT demonstrating marijuana’s medical efficacy. Indeed, in the past 50 years, only one Schedule I drug (Epidiolex) has ever been able to satisfy the DEA’s CAMU test, leading Mikos to label the agency’s science-focused approach the “Tyranny of Science.” The Tyranny of the Majority In 2023, however, HHS devised an alternative CAMU test that emphasizes practical experience over scientific research. “Because more than 30,000 health care practitioners (HCPs) had already recommended the drug to their patients in the thirty-eight states with medical marijuana laws,” Mikos explains, “the agency concluded there was enough clinical experience to demonstrate that marijuana has a CAMU and thus could be rescheduled.” But while this alternative test does not require completing RCTs – and thereby eliminates the Tyranny of Science – Mikos demonstrates that it is no less tyrannical than the DEA’s original CAMU test. According to Mikos, the alternative CAMU test simply “imposes a different form of tyranny: the Tyranny of the Majority.” He explains that to accumulate the clinical experience needed to satisfy the new test, advocates must convince popular majorities in a substantial number of states to legalize medical use of a drug. It took decades to build the public support necessary to do that for marijuana, and Mikos points out that no other Schedule I drug currently commands the same level of public support as marijuana. “Despite growing interest in the therapeutic value of [psychedelics, . . . less than a quarter of all Americans support legalizing psychedelics like psilocybin,” Mikos writes. “By comparison, 90% of Americans support legalizing medical marijuana.” What is more, even if large numbers of states were to legalize medical use of a substance like psilocybin or MDMA, advocates will also have to convince large numbers of patients, their health care practitioners (HCPs), and their suppliers to risk federal sanctions in order to accumulate the clinical experience HHS demands to satisfy the new CAMU test. “While marijuana was finally able to run the gauntlet, no other Schedule I is likely to replicate that feat anytime soon. Other promising Schedule I drugs like psilocybin, MDMA, and LSD are likely to remain trapped on that schedule for the foreseeable future,” the paper states. A New Way Forward Mikos argues that the agencies did not need to create a new CAMU test to reschedule marijuana. He suggests that the DEA has placed too much emphasis on CAMU in scheduling decisions. The DEA “has no authority, and no good reason, to hold (or place) a drug on Schedule I solely because the drug lacks a currently accepted medical use.” Indeed, Mikos suggests the agency’s emphasis on CAMU runs contrary to the text of the CSA and provides insufficient information about a drug’s benefits and risks to make sensible scheduling decisions. Rather than propose yet another, less tyrannical CAMU test, Mikos suggests that the DEA should instead take a more flexible approach to scheduling, one that considers all 3 criteria – a drug’s abuse potential, its dependence liability, and whether or not it has a currently accepted medical use (CAMU)—to determine where a drug belongs among the statute’s five schedules. “Although my approach would not make it any easier to demonstrate CAMU, it would reduce the dominant influence CAMU determinations now wield over scheduling decisions,” Mikos concludes. It would enable the agency to remove drugs like marijuana, psilocybin, or MDMA from Schedule I, even if they lack a currently accepted medical use, if their abuse potential and dependence liability so warrant. “As a result,” he notes, “my approach would foster more rational administrative scheduling decisions going forward.”

Robert  Mikos

1 min

Marijuana law scholar on legalization in New York

Robert Mikos, professor of law, is available for commentary on the legalization of recreational marijuana in New York. Professor Mikos is one of the nation’s leading experts on federalism and drug law. His most recent scholarship analyzes the struggle among federal, state and local governments for control of marijuana law and policy, which includes a first-of-its-kind casebook, Marijuana Law, Policy, and Authority. He has written, testified and lectured on: States’ constitutional authority to legalize marijuana Federal preemption of state marijuana regulations Political and budgetary considerations that limit enforcement of the federal marijuana ban Federal law’s influence on state regulation and taxation of the marijuana industry Desirability of marijuana localism

Robert  Mikos

Biography

Robert Mikos is one of the nation’s leading experts on federalism and drug law. His most recent scholarship analyzes the struggle among federal, state, and local governments for control of marijuana law and policy, which includes a first-of-its-kind casebook, Marijuana Law, Policy, and Authority (Wolters Kluwer, 2017). In that vein, he has written, testified, and lectured on the states’ constitutional authority to legalize marijuana, federal preemption of state marijuana regulations, the political and budgetary considerations that limit enforcement of the federal marijuana ban, federal law’s influence on state regulation and taxation of the marijuana industry, and the desirability of marijuana localism. He has also written on the states’ constitutional authority to withhold information from the federal government, sanctuary cities, the political safeguards of federalism, accuracy in criminal sanctions, the economics of private precautions against crime, and remedies in private law.

Mikos earned his J.D. summa cum laude from the University of Michigan Law School, where he served as articles editor on the Michigan Law Review and won numerous awards, including the Henry M. Bates Memorial Scholarship. After graduation, he was a law clerk for Chief Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit. Mikos has taught at the University of California at Davis, where he was twice nominated for the school’s Distinguished Teaching Award, as well as at Notre Dame and the University of Michigan. He teaches courses in Federalism, Constitutional Law, Marijuana Law and Policy, Federal Criminal Law, and Drug Law and Policy.

Areas of Expertise

Hemp Law
Sanctuary Cities
Opioid Abuse
Marijuana legalization
Marijuana Law and Policy
Federalism
Constitutional Law
Marijuana Law
Drug Laws
Pill Mills
Medical Marijuana
Cannabis Law

Education

University of Michigan

J.D.

Law

2001

Princeton University

A.B.

Public and International Affairs

1995

Affiliations

  • American Bar Association
  • Committee on Cannabis Law

Selected Media Appearances

Colleges Ban Medical Marijuana Use, Even In States Where It Is Legal

Forbes  online

2021-06-23

“I think schools are just worried about rocking the boat and jeopardizing that funding,” says Robert Mikos, professor of law at Vanderbilt University Law School. “You can see why a school would be leery of that. Because there’s a lot of money at stake.”

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Oregon Votes to Decriminalize All Drugs, Allow Psilocybin for Mental-Health Treatment

The Wall Street Journal  online

2020-11-04

“There are a lot of parallels between what Oregon is trying to do now and what states were doing with marijuana 40 years ago,” said Robert Mikos, a law professor at Vanderbilt University who has written about marijuana legalization. “As long as the sky doesn’t fall in Oregon, some other states might follow suit.”

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Medical Marijuana Loophole Case Headed To Arizona's Supreme Court

NPR  online

2018-10-22

STONE: Arizona is a cautionary tale about the possible fallout of using the ballot instead of state legislators to craft marijuana reform laws, says Rob Mikos. He's a law professor at Vanderbilt University and says these measures aren't always comprehensive.

ROB MIKOS: You're opening the door to those opponents to sort of revisit the issue and exploit those gaps.

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Selected Articles

Marijuana Law, Policy, and Authority

Vanderbilt Public Law Research Paper

Robert A. Mikos

2017

"This is the introductory Chapter from my textbook, Marijuana Law, Policy, and Authority. This-first-of its kind textbook is designed to guide instructors, students, and practitioners alike through the competing approaches to regulating marijuana, the policies behind those approaches, and the power of various federal, state, and local government actors to pursue them."

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Making Preemption Less Palatable: State Poison Pill Legislation

Vanderbilt Public Law Research Paper

Robert A. Mikos

2016

"Congressional preemption constitutes perhaps the single greatest threat to state power and to the values served thereby. Given the structural incentives now in place, there is little to deter Congress from preempting state law, even when the state interests Congress displaces far exceed its own."

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Marijuana Localism

Vanderbilt Public Law Research Paper

Robert A. Mikos

2015

"The states have wrested control of marijuana policy from the federal government, but they risk losing some of their newfound power to another player: local governments. Hundreds of local communities are now seeking to establish their own marijuana policies, from legalization to prohibition and a variety of idiosyncratic regulatory schemes in between.."

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