Researchers at the U.S. Congress are reminding lawmakers that they can enact reforms themselves, with greater speed and flexibility, if that is what they choose. This could help them avoid judicial challenges.
In an “In Focus” brief published by the Congressional Research Service (CRS) last week, analysts provided an overview of the different mechanisms through which scheduling actions can be implemented, noting the limitations of the process that the Biden administration initiated—and that the Trump administration has since inherited—to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
CRS reported that there are “two ways” in which substances could be listed under the CSA. Congress may schedule substances with legislation or, the Attorney General can list substances (in collaboration with HHS and the U.S. Department of Health and Human Services) through an administrative process outlined in the CSA.
For this report, which is an update to an earlier analysis CRS put out last year, researchers detailed various instances where Congress has stepped in and made a scheduling decision—such as the federal legalization of hemp under the 2018 Farm Bill.
The document states that Congress, when enacting the CSA back in 1970, placed a number of substances into Schedules I-V. Since the CSA was enacted, the majority of subsequent changes to the schedule have been done by the DEA through the rulemaking procedure, however, Congress has passed legislation at various times in order to change or add controlled substances.
It says that there are many reasons Congress may decide to schedule substances or reschedule them via legislation. For example, in comparison to administrative scheduling and legislative scheduling, the latter may provide greater flexibility, speed, and efficiency.
In general, administrative scheduling is done through formal rulemaking. This can often take several months to years. The DEA must make certain determinations in making its scheduling decisions regarding the potential abuse of each substance and their accepted medical uses, as required by law. “DEA scheduling order (other temporary scheduling orders), are subject to judicial reviews, including consideration as to whether the agency correctly applied relevant statutory standard.
HHS’ review of cannabis under Biden took about 11 months. The initial rescheduling recommendations were made by HHS. DEA then completed a separate review before the Justice Department formally proposed moving marijuana to Schedule III—but even then, there have been months of delay in the administrative hearing process to potentially finalize the rule.
CRS reported that Congress would be able to reschedule, or deschedule, marijuana faster and without as much of a threat from a legal challenge.
Report: “Congress does not have to follow the CSA procedural and substantive requirements.” This means it may schedule a substance without regard to whether or not the substance meets statutory requirements. Although legislation can be challenged, the scope for judicial review is usually more restricted than that of regulation.
The DEA is also required to comply with a number of strict statutory provisions under the CSA, which include the requirement that DEA schedules large groups of substances such as fentanyl and its related substances.
CRS stated that the CSA limits DEA’s options to regulate controlled substances. Schedules I through V were established by the CSA, and each Schedule had a specific set of controls for unauthorized actions. If DEA wants to place a substance into CSA control, they must do so in a schedule.
The agency can tailor control to certain substances but cannot implement new regulations, or create exceptions to the controls that aren’t authorized by the CSA. Congress can only regulate a controlled drug in a manner that is not within the existing CSA, and it cannot allow DEA this authority.
DEA’s obligations to comply with international treaties when it comes time to schedule drugs are noted in the report. However, this does not stop Congress from using its constitutional power to enact new legislation, even if doing so could cause the United States violate their treaty agreements.
Last month, a Senate Committee advanced Terrance Cole’s confirmation to be the Administrator of DEA. This was despite the fact that a proposal to reschedule marijuana is still being reviewed and he has refused to commit himself to implementing it.
Cole—who has previously voiced concerns about the dangers of marijuana and linked its use to higher suicide risk among youth—said 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 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.
“I’m not familiar exactly where we are, but I know the process has been delayed numerous times—and it’s time to move forward,” he said at the time. I need to know more about where [agencies] “Really understand what the experts are saying and the way they think.”
Cole added that it would be appropriate to set up a group of “working” people to study the disparity between state and federal marijuana laws, in an effort to “stay on top”
DEA recently notified an agency judge that the proceedings are still on hold—with no future actions currently scheduled. The matter sat without action before an acting administrator, Derek Maltz, who has called cannabis a “gateway drug” and linked its use to psychosis. Maltz left his position in the past.
A poll shows that most marijuana consumers oppose Trump’s cannabis actions so far, but rescheduling or legalization could boost support.
Side Pocket Images. Photo by Chris Wallis.