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As the U.S. waits for the Drug Enforcement Administration (DEA) to begin its rulemaking process for rescheduling cannabis on the federal list of controlled substances, it has become apparent the agency is unhappy about the change. It now appears that the DEA was pushed out of the decision-making process by the U.S. attorney general and the Biden administration’s Department of Justice (DOJ).
Last month, the DEA published its proposed rules for rescheduling marijuana in the Federal Register. In 2023, the Department of Health and Human Services (HHS) recommended rescheduling cannabis from Schedule I — where it sits alongside drugs like heroin and LSD — to Schedule III — with drugs like steroids and methadone — a move that would mean the federal government recognizes the drug’s therapeutic potential and would make it easier for scientists to study the drug.
Since then, the DEA has repeatedly said that it alone held the authority to decide whether to reschedule or not, although experts claimed that it was unlikely to contradict the HHS recommendation since that agency is the nation’s health authority and the DEA has never gone against one of its recommendations before.
But according to a recent report by the Associated Press, anonymous sources within the DEA confirmed that the agency never had any intention to reschedule marijuana, and that its hand was forced by the DOJ.
Despite its authority in the matter, the DEA was reportedly cut out of the process and the decision was instead made by U.S. Attorney General Merrick Garland, the head of the DOJ, which oversees the agency. DEA officials reportedly believe the decision was fast tracked to prop up President Joe Biden’s popularity with young voters who support marijuana reform in an election year.
If true, this can become a very hairy situation. Federal law authorizes the attorney general to classify drugs, but the authority has always been passed down to the DEA before now.
In an April memo from the DOJ’s Office of Legal Counsel (OLC), the department’s attorneys defended Garland’s authority to overstep the DEA, saying that “DEA and HHS hold sharply different views” about rescheduling and the DEA’s approach to determining whether a drug has “currently accepted medical use in treatment” — a prerequisite for being placed in Schedule II I— is “impermissibly narrow.” The memo appears to indicate that the DEA did not agree with the HHS assessment that marijuana be rescheduled.
The DEA’s lack of involvement in the process was hinted at in its notice of proposed rulemaking, which was signed by Garland and not Anne Milgram, the DEA administrator. “DEA has not yet made a determination as to its views of the appropriate schedule for marijuana,” wrote Garland.
In early June, the National Center for Complementary and Integrative Health organized a conference where officials from federal health agencies could meet to discuss the research policies around marijuana and the upcoming rescheduling rulemaking. Notably, a DEA official who was scheduled to speak canceled right before the event and never showed. The agency did send a message to the conference that its goal was to “support researchers,” but it did not clarify its plans regarding rescheduling.
Meanwhile, prohibition supporters are working to keep the rescheduling from ever happening. Earlier this month, prohibitionist group Smart Approaches to Marijuana called for the DEA to extend the public comment period by an extra 30 days, saying it planned to present a report to the agency on negative effects that marijuana has on the brain development of young people. The group has also said it is looking into its legal options for challenging the plan.
SAM and other opponents of rescheduling have pointed out that changing marijuana’s legal status may violate international drug treaties, but the OLC memo challenges that claim, saying that “we conclude that neither the Single Convention nor the CSA requires marijuana to be placed into Schedule I or II.” The DOJ’s attorneys said that the DEA can satisfy the country’s Single Convention obligations by rescheduling and imposing extra restrictions on the drug.