Former officials from the Drug Enforcement Administration and the U.S. Department of Health and Human Services say that without President Donald Trump’s personal advocacy, the marijuana rescheduling process may stall for an indefinite period of time.
It’s possible that the current paused rescheduling process could be stopped if the administration changes the interpretation of legal arguments that the Office of Legal Counsel of Justice Department made under Biden’s administration about the federal drug policy.
During a virtual forum organized by Ohio State University’s Drug Enforcement and Policy Center (OSU), the officials lifted the curtain on the drug rescheduling and weighed on the fate the proposal to shift cannabis from Schedule I (the current schedule) to Schedule III (the new one).
Even though HHS and Justice Department supported marijuana rescheduling after the review initiated under former President Joe Biden’s term, the process stalled at the end of Biden’s tenure due to problems in DEA administrative proceedings. There’s no indication of when the hearings could resume or what DEA would do differently under Trump.
Matt Lawrence, a retired senior advisor at the DEA, sees three possible outcomes in the Trump Administration for rescheduling.
First, DEA “does essentially nothing” and continues to drag out the process. It might require administrative updates, but this is the easiest path to take.
DEA could also do “something very quick” in order to finalize the rescheduling regulation. Lawrence, however, said that he expected Trump to make the issue “a presidential priority”.
Supporters of rescheduling got an unwelcome update on that front last week, however, as the White House Office of Drug Control Policy (ONDCP) released a report that outlined the administration’s top drug policy priorities for Trump’s first year of his second term—and it notably did not mention rescheduling or other cannabis reforms.
Lawrence also said he can see a situation where DEA decides to move forward with rescheduling but that the agency needs to propose separate rules for cannabis to be regulated as a Schedule 3 drug in order to comply with international treaty obligations.
In the end, he stated that, “the greatest thing to predict between these three paths is political” and whether administrations perceive reschedulings as motivators or detractor.
Lawrence added: “I will leave this to experts in politics to sort of predict.” “But if it’s not a political priority—or if it’s a mixed political thing, like it’s a win and a loss—then you’ve got to assume it’s going to be the can-kicking approach.”
Patricia Zettler – a former HHS deputy chief counsel – said in a separate speech at OSU that Trump’s nominee to head the DEA is Terrance Col. “He has a career record at DEA. I think that doesn’t bode well for supporting rescheduling.”
“There are probably institutional norms within…DEA that counsel against rescheduling,” she said. “OLC could issue a new opinion—taking a different position about what currently accepted medical use means or something like that. It’s easier to ignore the issue and allow marijuana to remain in its current state.
It could be that stalling is the easiest way to go forward if it isn’t important in any direction.
There has been no public sign that the Trump Administration plans to reconsider its opinion on the DOJ OLC supporting the rescheduling. Both former officials said that this is one scenario that could jeopardize a rescheduling.
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.
A non-profit group of doctors who support marijuana reform filed a court brief in February arguing there was evidence that the DEA had conducted an “arbitrary review” (or selection of witnesses) for cannabis rescheduling and the hearings should be redone.
Doctors for Drug Policy Reform filed a separate request to the Federal Appeals Court seeking a stay before DEA Administrative Law judge John Mulrooney made his ruling delaying the rescheduling of hearings.
Another organization that was also denied participation, Veterans Action Council (VAC), similarly filed a petition with the same court in December to request a review of the agency’s decision to exclude it from the proceedings.
The agency judge informed former DEA Administrator Anne Milgram that he had denied a motion to remove DEA from all rescheduling procedures, arguing it was improperly named as the “chief proponent” of proposed rule, given the allegations. Ex parte The process was ruined by communications between witnesses and the anti-rescheduling group.
In January, Mulrooney also 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.
Robert F. Kennedy Jr. has previously expressed his support for cannabis legalization and psychedelics as therapy. But during his Senate confirmation process in February, he said that he will defer to DEA on marijuana rescheduling in his new role.
Former Rep. Matt Gaetz (R-FL)—Trump’s first pick for U.S. attorney general this term before he withdrew from consideration—says “meaningful” marijuana reform is “on the horizon” under the current administration, praising the president’s “leadership” in supporting rescheduling.
Trump chose Pam Bondi to be the new DOJ director after Gaetz resigned. This choice was confirmed by the Senate. Bondi refused to reveal how she would handle key marijuana-policy issues during her confirmation hearings. As attorney general of Florida, Bondi opposed the legalization of medical marijuana.
Adding to the uncertainty around the fate of the rescheduling proposal, Trump’s nominee to lead DEA, Terrance Cole, has previously voiced concerns about the dangers of marijuana and linked its use to higher suicide risk among youth.
Some believe that appealing to Trump by framing this issue as an opportunity to help veterans and patients, and leveraging his stated support for rescheduling could encourage the president to push for reforms from the Oval Office. The thinking is that a directive from Trump will not be ignored, no matter what other members of his administration think.
To that point, a marijuana industry-funded political action committee (PAC) is attacking Biden’s cannabis policy record as well as the nation of Canada, with new ads promoting sometimes misleading claims about the last administration while making the case that Trump can deliver on reform.
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Side Pocket Images. Photo by Chris Wallis.