The Senate has given initial approval for the chamber to take up the confirmation of President Donald Trump’s pick for head of the Drug Enforcement Administration (DEA)—a choice that will likely determine the fate of marijuana rescheduling.
Terrance Col was chosen to be the DEA administrator, however during Trump’s second term it has only been managed by interim leadership. The Senate voted 44-43 to approve a motion on Monday to invoke cloture in order to move forward the nominee. The final confirmation vote is scheduled for Tuesday morning.
Notably, while Cole has said that examining the rescheduling proposal would be “one of my first priorities” if he’s confirmed for the role, he has refused to say what he wants the result to be and has in the past made comments expressing concerns about the health effects of cannabis.
In May, a Senate committee advanced the nomination of Cole to become DEA administrator amid the ongoing review of the marijuana rescheduling proposal that he has so far refused to commit to enacting.
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.”
Earlier in this month, DEA notified a federal agency judge again that the process of rescheduling marijuana under Trump’s administration remains stalled.
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. In a report submitted to the judge on Monday by DEA lawyers and rescheduling advocates, they said that there is still no agreement.
Robert Murphy, the acting administrator of the DEA, is the only person who can take action at this time on the proposal to reschedule cannabis. According to others, it is more likely that this rule won’t be implemented until a permanent DEA management is in place.
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.
DEA Administrative Law Judge (ALJ) John Mulrooney initially agreed to delay the rescheduling proceedings after several pro-reform 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 on the proposed rescheduling rule were set to commence on January 21, but those were cancelled when Mulrooney granted the appeal motion.
After the appeal, the judge had denied a motion to remove DEA from all rescheduling procedures. The motion argued that DEA was improperly named as “proponent” for the proposed rule due to allegations that ex-parte communications were made with witnesses who opposed rescheduling and that this “resulted” in an irrevocable taint on the process.
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.
The issue is DEA’s refusal to digitally submit the tens and thousands of comments received by it in response to a proposed rule that would move cannabis from Schedule II to III.
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.
Separately, the House Appropriations Committee on Tuesday approved a spending bill that contains provisions to block the Justice Department from rescheduling marijuana.
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 psychedelic therapies. 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. Notably, Republicans are even more committed to allowing the states to legalize pot without federal interference than is typical of 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. She also opposed medical cannabis legalization as the state’s attorney general.
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.
Philip Steffan provided the photo.
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