The Senate is poised to take an initial step toward confirming President Donald Trump pick to lead the Drug Enforcement Administration (DEA) next week—a development that many cannabis industry observers believe is necessary for the stalled marijuana rescheduling process to proceed.
Terrance Col was chosen to be the new administrator for DEA. But, so far during Trump’s second term, it has been managed by interim leaders.
Cole said that reviewing the proposed rescheduling would be one of his “first priorities” should he be confirmed, but he refused to specify what outcome he wanted. He has also made previous comments about cannabis’ health effects.
The Senate is now planning a Monday procedural vote that will invoke cloture and advance the nominee. This wouldn’t be a final vote for Cole but would allow the Senate to move on to confirming him.
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.”
Last week, DEA informed a judge of the agency that marijuana rescheduling remains stalled in the Trump administration.
John Mulrooney (DEA Administrative Law Judge, ALJ), who was appointed by Biden’s administration to be the DEA Administrative Law Judge in 2010, temporarily halted the hearings of a proposal that would move cannabis from Schedule I into Schedule III under the Controlled Substances Act. The DEA and rescheduling supporters said in a Monday joint report that they are still stuck.
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. Some believe that the proposed rule will be held up until a permanent DEA administrator is confirmed.
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.
Mulrooney, who granted an appeal, cancelled the original hearings scheduled to begin on 21 January.
This appeal was filed after the court denied a request that DEA be removed from the rescheduling process. 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.
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.
Aside from the delays in hearings, the new leadership at DEA is also a complicating factor.
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. Notably, Republicans are even more in favour of the states legalizing marijuana, without federal interference, than is the average voter.
Trump has chosen Pam Bondi, the former Florida attorney general, to be his nominee for DOJ. The Senate confirmed this decision. 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.
Mike Latimer is the photographer.
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