Drug Enforcement Administration (DEA), has again notified a agency judge, that the marijuana rescheduling is still stalling under Trump’s administration.
John Mulrooney, DEA Administrative Law Judge and ALJ of the Controlled Substances Act, has been halting hearings for six months on a proposed move to Schedule III from Schedule I under the Controlled Substances Act. This was started by the Biden Administration. The DEA and rescheduling supporters said in a Monday joint report that they are still stuck.
Movants’ Interlocutory Appeal to the Acting administrator regarding their Motion for Reconsider is still pending. “No briefing schedule is set,” says the notice.
It is 90 days since both parties gave the same update to the judge, but at a time when another acting administrator had been in charge.
In 90 days, DEA must update the appeal and provide an updated list of witnesses. Robert Murphy, the acting administrator of the DEA, is expected to take any necessary action in the near future on the proposed regulation to reschedule cannabis.
Murphy’s appointment as acting administrator wasn’t widely publicized, but he’s replaced Derek Maltz—who subscribes to the “gateway drug” theory for marijuana— in the role as the Senate considers confirming President Donald Trump’s pick to lead the agency, Terrance Cole.
Whereas Maltz, the former acting administrator, made his opposition to cannabis reform known in numerous social media posts and TV interviews before taking on the leadership role, Murphy’s position on the issue is less clear—though it is notable that he did speak at an event hosted by prohibitionist organization Smart Approaches to Marijuana in 2018.
According to a summary, he addressed the audience on how black markets thrive off marijuana from states which have legalized it. “He also took the time to remind all that marijuana for medical or recreational purposes is illegal under federal laws.”
A Senate Committee advanced Cole’s nomination to be DEA Administrator in May. This was despite the fact that he had refused to commit himself to implementing the proposal to reschedule marijuana.
Cole—who has previously voiced concerns about the dangers of marijuana and linked its use to higher suicide risk among youth—said in response to senators’ written questions that he would “give the matter careful consideration after consulting with appropriate personnel within the Drug Enforcement Administration, familiarizing myself with the current status of the regulatory process, and reviewing all relevant information.”
However, during an in-person hearing before the Senate Judiciary Committee in April, he said examining the rescheduling proposal will be “one of my first priorities” if he was confirmed for the role, saying it’s “time to move forward” on the stalled process—but again without clarifying what end result he would like to see.
Mulrooney, the agency judge, initially agreed to delay the proceedings after several pro-rescheduling parties requested a leave to file an interlocutory appeal amid allegations that certain DEA officials conspired with anti-rescheduling witnesses who were selected for the hearing.
The DEA judge initially agreed to delay the proceedings after several pro-rescheduling parties requested a leave to file an interlocutory appeal amid allegations that certain DEA officials conspired with anti-rescheduling witnesses who were selected for the hearing.
Originally, hearings were set to commence on January 21, but those were cancelled when Mulrooney granted the appeal motion. He instructed DEA to update the status of both parties within 90-days, or this Sunday.
This appeal was filed after the court denied a request that DEA be removed from all rescheduling processes. They argued it had been wrongly identified as the “chief proponent” given allegations about ex parte communication with anti-rescheduling witness that resulted in “an irrevocable taint”.
Meanwhile, the Justice Department told a federal court in January that it should pause a lawsuit challenging DEA’s marijuana rescheduling process after Mulrooney canceled the hearings.
Also in January, Mulrooney condemned DEA over its “unprecedented and astonishing” defiance of a key directive related to evidence it is seeking to use in the marijuana rescheduling proposal.
It was the DEA’s insistent digital submission of tens or thousands of public commentaries it had received as a response to its proposed rule for moving cannabis to Schedule 3.
Mulrooney didn’t hesitate to call out DEA on various procedural errors throughout this rescheduling.
For example, in December he criticized the agency for making a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in hearings—but he allowed the agency to fix the error and ultimately granted the request.
Relatedly, a federal judge also dismissed a lawsuit seeking to compel DEA to turn over its communications with the anti-cannabis organization.
Mulrooney had separately denied a cannabis research company’s request to allow it to add a young medical marijuana patient and advocate as a witness in the upcoming rescheduling hearing.
Also, one of the nation’s leading marijuana industry associations asked the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.
Further, a coalition of health professionals that advocates for cannabis reform recently asked that the DEA judge halt future marijuana rescheduling hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.
Re-scheduling has generated a lot of public interest. Although moving marijuana to Schedule III won’t make it legal at the federal level, this reform will allow cannabis-licensed businesses to claim federal tax breaks and eliminate certain research restrictions.
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Meanwhile, two GOP senators introduced a bill in February that would continue to block marijuana businesses from taking federal tax deductions under Internal Revenue Service (IRS) code 280E—even if it’s ultimately rescheduled.
The new leadership of the DEA, under Trump’s administration, is another factor that complicates the situation.
Robert F. Kennedy Jr. is the Secretary of Health and Human Services in the United States. He has been vocal before about his support of cannabis legalization and psychedelics as therapy. But during his Senate confirmation process in February, he said that he would defer to DEA on marijuana rescheduling in his new role.
Separately, former Rep. Matt Gaetz (R-FL) was reportedly photographed reviewing a document that appears to be a draft contract to provide services—including “administration-related guidance”—to a firm affiliated with the major marijuana company Trulieve. The visible portion of the document describes a lucrative bonus if a certain “matter resolves,” with an “additional ‘Super Success Fee'” for other “exclusive policy remedies.”
Last month, the former congressman reiterated his own support for rescheduling cannabis—suggesting in an interview with a Florida Republican lawmaker that the GOP could win more of the youth vote by embracing marijuana reform.
Gaetz also said last month that Trump’s endorsement of a Schedule III reclassification was essentially an attempt to shore up support among young voters rather than a sincere reflection of his personal views about cannabis.
A survey conducted by a GOP pollster affiliated with Trump that was released in April found that a majority of Republicans back a variety of cannabis reforms, including rescheduling. They’re also more in favor of states being able to legalize cannabis without interference from the federal government than average voters.
Trump chose former Florida Attorney-General Pam Bondi to lead the DOJ and Senate approved this choice. During her confirmation hearings, Bondi declined to say how she planned to navigate key marijuana policy issues. As attorney general of Florida, Bondi opposed the legalization of medical marijuana.
Amid the stalled marijuana rescheduling process that’s carried over from the last presidential administration, congressional researchers recently reiterated that lawmakers could enact the reform themselves with “greater speed and flexibility” if they so choose, while potentially avoiding judicial challenges.
Meanwhile, a newly formed coalition of professional athletes and entertainers, led by retired boxer Mike Tyson, sent a letter to Trump on Friday—thanking him for past clemency actions while emphasizing the opportunity he has to best former President Joe Biden by rescheduling marijuana, expanding pardons and freeing up banking services for licensed cannabis businesses.
Please read below the update from the DEA Judge and the DEA Joint Committee on Cannabis Rescheduling.
Brian Shamblen provided the photo.
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