Monday, May 20, 2024

Reading the Tea Leaves on Marijuana Rescheduling

David Pozen

The Controlled Substances Act authorizes the attorney general to schedule drugs. Schedule I of the CSA imposes a complete criminal ban; schedules II through V allow drugs to be prescribed under certain conditions. For decades, the attorney general has delegated this authority to the Drug Enforcement Administration, which has consistently opposed any and all efforts to let marijuana leave schedule I. It was therefore big news when the Associated Press reported on April 30 that the “U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug.” After decades of demonizing marijuana, I assumed, DEA had finally endorsed some reefer sanity. I now believe this assumption was wrong.

The following pieces of evidence make it pretty clear that DEA has, in fact, continued to resist the rescheduling of marijuana. I have no inside information of any kind; everything here is in the public record. 

1. On May 16, the attorney general himself submitted the notice of proposed rulemaking to the Federal Register. The notice states on page 13 that “DEA has not yet made a determination as to its views of the appropriate schedule for marijuana.” By contrast, when a comparable notice was submitted in 1998 for the rescheduling of dronabinol, which contains a synthetic form of the main psychoactive ingredient found in the cannabis plant, the notice was issued jointly by DEA and DOJ and signed by DEA’s deputy administrator. And whereas this latest notice begins, “The Department of Justice proposes to transfer marijuana from schedule I . . . ,” other recent scheduling notices begin, “The Drug Enforcement Administration proposes . . . ,” and are signed by the DEA administrator instead of the attorney general.

2. Also on May 16, DOJ released an Office of Legal Counsel opinion from last month that resolves a dispute between DEA and the Department of Health and Human Services in favor of the latter. The dispute concerns the meaning of the statutory phrase “currently accepted medical use in treatment in the United States.” As the opinion relates, DEA has taken the position “that a drug has a [currently accepted medical use] only if FDA has approved the drug”—which has not happened with marijuana—or if the drug meets a five-part test that relies “exclusively on certain scientific evidence” while “ignoring widespread clinical experience . . . sanctioned by state medical licensing regulators.” The OLC opinion strongly suggests that on the basis of this now-repudiated position, DEA disagreed with HHS’s 2023 recommendation that marijuana be moved to schedule III. 

3. Previewing this disagreement, the Wall Street Journal reported in March that “some” unnamed officials at DEA “are resistant” to HHS’s rescheduling recommendation, “saying the drug’s medicinal benefits remain unproven and that it has a high potential for abuse.”

4. Kevin Sabet, a former White House drug policy advisor and leading critic of marijuana liberalization, claimed on May 6 that “the Administrator of DEA, Anne Milgram, did NOT sign the rescheduling order,” citing “two confidential sources inside DEA and another outside DEA with intimate knowledge.” I am not aware that anyone in the Biden administration has tried to rebut Sabet’s claim.

5. The next day, Milgram repeatedly refused to answer questions about marijuana rescheduling during congressional testimony.

In short, it is becoming increasingly apparent that there has been a months-long fight within the executive branch over marijuana rescheduling. The big news is not that DEA has finally made its peace with pot. The big news is that OLC sided with HHS rather than DEA on the relevant legal standard and that Attorney General Merrick Garland—former prosecutor and federal judge, lawyer’s lawyer par excellence, and just about the least likely countercultural icon one could imagine—then effectively overruled DEA and withdrew its scheduling authority with respect to marijuana.

I expect we’ll hear much more about this in the coming weeks. DEA’s defenders will applaud the agency for sticking to its historical position and refusing to cave to presidential pressure. Critics will accuse DEA of trying to sabotage a modest reform effort that is not just politically popular but also legally warranted and long overdue.

My own view on this particular dispute is that while schedule III is preferable to schedule I, new legislation is needed to fully decriminalize and deschedule marijuana while addressing the real concerns raised by state legalizations. The bigger lesson, as I touched on in my previous post, is that we need to rethink the entire way we handle drug scheduling. I have a hard time seeing why any scheduling decisions should be made by DEA, not because its administrators are bad actors but because it’s an “anti-drug” agency with a deep material and ideological investment in prioritizing criminal responses to drug problems.

DEA, HHS, and the attorney general have all acted reasonably here, given their institutional roles and incentives. Congress is the entity that deserves the lion’s share of blame for devising such a wonky system of drug scheduling, run by the nation’s chief law enforcement officer. And Congress is the entity that most needs to take responsibility both for the federal government’s shameful overpunishment of drug users and for its shameful underinvestment in effective public health responses.


David Pozen is the Charles Keller Beekman Professor of Law at Columbia Law School. His book The Constitution of the War on Drugs is the first in Oxford University Press’s Inalienable Rights series to be fully open-access and is available for free download here.

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