A recent U.S. Supreme Court ruling has some advocates worried that the Drug Enforcement Administration (DEA) may not follow through with rescheduling marijuana. It’s a complex topic, and the truth behind the concerns may be difficult to suss out.
The case that has caused all the agitation, Loper Bright Enterprises v. Raimondo (commonly referred to as “Loper Bright”), came to a close in June. The case concerned a group of fisheries from New England that asserted they were not required to pay the salaries of federal observers assigned to boats to collect data to curb overfishing. The National Marine Fisheries Service disagreed, and wanted the fisheries to pay for the required federal oversight.
Since the rules around who pays the observers was murky, interpretation was left up to the agency thanks to the Chevron Doctrine, the result of a 1984 case between Chevron and the National Resources Defense Council that required courts to defer to federal regulatory agencies when deciding how to interpret ambiguous laws that fall under their purview.
But the Supreme Court sided with Loper Bright and overturned the Chevron Doctrine, essentially making it so that the courts have the final say in these matters instead of federal agencies.
So, what does that have to do with rescheduling marijuana? Some advocates argue this ruling could make it easier for opponents of rescheduling to impede progress or halt it altogether.
The DEA is currently deciding whether to move cannabis from the Schedule I category under the Controlled Substances Act—meaning it’s considered to have no medical value and the potential for abuse—to Schedule III, a category that allows for some medical use.
The final decision has been left up to the DEA, but whatever decision it makes will still need to go through judicial review, and some advocates say the courts may overrule it.
Previously, under the Chevron doctrine, courts deferred to agencies’ interpretations of ambiguous statutory terms, such as “potential for abuse” and “currently accepted medical use.” This meant that courts often accepted the DEA’s definitions of these terms as long as they were reasonable—even if the court would have interpreted the terms differently. But the Loper Bright ruling has overturned this doctrine, and courts must now exercise independent judgment in interpreting statutory provisions without deferring to agency interpretations.
It should also be noted that the U.S. Department of Health and Human Services (HHS) decided to use a different two-part test for currently accepted medical use instead of the traditional five-part test when it made its recommendation to the DEA to reschedule. Although there are arguments in favor of the HHS’ adoption of this new test, the judicial branch is no longer obliged to defer to such decisions post-Loper Bright.
This has led many advocates to begin sounding the alarm that the decision to reschedule may ultimately be left up to the nation’s courts. While this is true, it may still be too early to make any gloomy predictions. No one knows how the courts will react to the DEA decision or whether they will challenge it, and advocates would need a crystal ball to truly know how it will pan out.
In the meantime, if advocates are that concerned with this ruling, they would do well to remember that there is still another path to rescheduling or descheduling that will not involve the courts at all: Legislative action.
While administrative rescheduling through the DEA faces potential legal and procedural hurdles, Congress has the authority to reschedule marijuana through legislative channels. Historically, Congress has been slow to act, but high public support for cannabis law reform suggests that there is strong voter support for legislative action. The Congressional Research Service has noted that Congress can move marijuana to Schedule III more quickly and flexibly than the DEA. Perhaps the repercussions of Loper Bright will push lawmakers to take matters into their own hands.