Drug Enforcement Administration judge overseeing the marijuana rescheduling is retiring. “All matters in this case” will be sent to President Donald Trump’s newly confirmed agency administrator, “for any action, if he deems it appropriate.” As there is no judge hearing the matter, the new official can take whatever actions he deems necessary.
John Mulrooney (ALJ), Administrative Law Judge, notified the witnesses involved in the cannabis rescheduling hearings that he will retire from the bench effective August 1, just a day after Terrance Col was confirmed as the new DEA head by the Senate.
Mulrooney stated that after his retirement, the DEA will no longer have an Administrative Law Judge who can hear the case or any other administrative enforcement matter pending at the Agency.
According to the Controlled Substances Act, DEA hearings on administrative enforcement proceedings are required to be held in compliance with Administrative Procedure Act rules and under an Administrative Law Judge’s supervision. 21 U.S.C. § 824(c)(4); 5 U.S.C. § 556(b)(3),” he said. “Until this situation changes, any and all documents filed will be sent to the DEA administrator for his consideration.”
All previously issued procedural orders are still in force unless they have been modified by a new Administrative Law Judge or by the DEA Administrator. “I wish the parties all the best for a just, accurate, transparent and fair resolution of this issue. I also extend my sincere gratitude to their attorneys and representatives who have been tireless and committed in their advocacy.”
Cole is now the administrator of the DEA and will therefore be responsible for overseeing the stalled rescheduling cases.
Notably, while Cole has said that examining the rescheduling proposal would be “one of my first priorities” if he was 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 informed Mulrooney once again that the marijuana rescheduling under Trump’s administration remains stalled.
Mulrooney temporarily halted hearings six months ago on a Biden-era proposal that would have moved cannabis from Schedule I into Schedule III. In a report submitted to the court on Monday by DEA lawyers and rescheduling advocates, they said that there is still no agreement.
The judge 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 judge 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.
It was the DEA’s insistent digital submission of tens or thousands of public commentaries it had received as a response to the proposed regulation to shift cannabis to Schedule 3.
Mulrooney is not shy in calling out DEA for various procedural mistakes throughout the 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.
Public interest in the rescheduling process has been high. The rescheduling of marijuana from Schedule I to Schedule III would not make it federally legal, but the reform could allow licensed cannabis businesses access to federal tax deductions as well as remove some research obstacles.
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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., Secretary of the U.S. Department of Health and Human Services(HHS), has previously expressed his support of legalizing marijuana and psychedelic 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. Notably, Republicans are even more favourable to allowing the states to legalize pot without interference by federal authorities 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.
Below, you can read the letter sent by the DEA Judge to witnesses who are rescheduling marijuana.
Rawpixel, Philip Steffan and other photographers provided the images.
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