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Like many in the cannabis community, I am anxiously awaiting the DEA’s action on President Biden’s request to reschedule marijuana. The drum beat announcing imminent change appears to get louder each day. Wishful thinking is that rescheduling on or around the cannabis holiday of 4/20 would be logical timing. It would guarantee an endless number of photo opportunities with happy advocates smoking cannabis in all manner of situations.
But this thinking assumes that DEA will say yes and that isn’t necessarily the case.
When the main petitioner of a rescheduling effort is the President of the United States, I suppose it is natural to think that sanity will prevail. But in reviewing the accompanying politics of the situation, I don’t know if that optimism is warranted. Of course, rescheduling has always been about politics, not science, and I certainly hope I am wrong. But let’s look at some of the overt political actions swirling around this seemingly simple decision.
Those against…
There have, of course, been DEA’s allies making the public case for not changing schedules. On September 11, 2023, a coalition of 14 Republican congressional lawmakers urged the DEA to — you guessed it — keep marijuana in Schedule I. Their reasons were nothing new: Concerns were expressed about today’s cannabis potency, children overdosing on gummies, and cannabis hasn’t been approved as a prescription drug, so it can’t be called a medicine.
In the next month, October, a predictable group of 6 former DEA administrators and 5 former White House drug czars wrote to U.S. Attorney General Merrick Garland and DEA administrator Ann Milgram, urging them to Just Say No to rescheduling. Once again, it was a tired old script of anti-marijuana rhetoric: Marijuana is more dangerous these days than ever before, it has no medical value because the FDA has not approved it, and, a relatively new argument, the tax relief for cannabis businesses that will follow rescheduling would be rolled over into advertisements aimed specifically at youth.
I just report it, I don’t make it up.
It’s important to note that none of the 14 congressional representatives nor the eleven former drug officials is a doctor, scientist, or researcher.
Those for …
On the flip side of that coin, on December 6, 2023, six governors (only six?) jointly asked the president to reschedule by the end of that year. A rather lame effort if you think about it. The governors acknowledge there are 38 cannabis state laws, so where were the other 32 governor signatures? And there is a more glaring problem: the president can’t reschedule drugs. Only the DEA and Congress can adjust schedules.
In January 2024, a group of six Democrat Senators urged the Department of Justice to deschedule — i.e., remove marijuana completely from the Controlled Substances Act (CSA). I found it almost ironic that a group of senators would make this request. More than half a century ago, in 1969, when the CSA was going through its hearings in Congress, a group of bi-partisan Senators nearly derailed the entire legislation when they balked at including marijuana in Schedule I. “Where was the evidence?” they asked. That famously led President Richard Nixon to form the Shafer Commission, which was charged with studying marijuana and returning a recommendation on its proper scheduling. When the Commission famously returned its decision to decriminalize and deschedule marijuana, President Nixon no doubt penned a nice letter of “thanks for your service” and promptly filed the report in the circular file. Marijuana remained in Schedule I.
The increased involvement of Vice President Harris
The increased involvement of Vice President Harris in recent weeks does worry me. I know it was good for cannabis stocks, and an optimist would say such public displays of support for a potential administrative action could portend good news — the administration is paving the way for a big positive announcement.
On the other hand, and this is more likely, the Biden Administration may have hit some heavy headwaters at DEA and is trying to save its recommendation by bringing public pressure to bear on the DEA and its administrator. This seems more likely in light of a March 9th article in the Wall Street Journal entitled “Biden Push to Ease Marijuana Restrictions Sparks Tension.” This article revealed that HHS officials had requested information from the Justice Department’s OLC (Office of Legal Counsel). The OLC often reviews and gives legal advice on operations and proposed legal changes within the executive branch of the government.
Upon learning of the HHS request to the OLC, my first thought was, “Uh-oh, they just learned about the decision of 1989.” In that year, we learned that DEA administrators have the absolute power to say no to efforts to reschedule, no matter who says they should. That was the year that administrator John Lawn rejected the findings of the DEA Chief Administrative Law Judge Francis L. Young, who held two years of hearings with dozens of witnesses and thousands of pages of documents. Judge Young ruled that marijuana does have medical value and should be rescheduled. Administrator Lawn said, “No.” The Court of Appeals upheld Lawn’s actions based solely on a regulation that gives the DEA administrator the final say.
What if DEA says no?
An interesting question is: What will happen if the DEA says No? It seems unlikely that President Biden will go to the Court of Appeals, and, as just discussed, that route has been proven unproductive. Nor can the president reschedule via executive action, or so I have been told. The only viable course is Congress. Will Biden send legislation to Capitol Hill? Will cannabis organizations unite and pressure Congress to act on rescheduling?
The cannabis reform movement is so much stronger today than it was in 1989, but it is also scattered across different aspects of the issue, each of which has a different center of focus. In some ways, the state medical cannabis laws have been a boon to the federal government, removing pressures once brought by the seriously ill and placing them on the less broad shoulders of local government. For decades, the focus of the marijuana reform movement was appropriately the federal government. Now, with 38 states struggling to build or maintain intra-state programs, the age-old adage of “divide and conquer” comes to mind.
Rescheduling is controversial even within the cannabis community. On March 1, 2024, the Drug Policy Alliance, Law Enforcement Action Partnership, and the Cannabis Regulators of Color Coalition publicly asked the federal government to deschedule marijuana or leave it in Schedule I. There is legitimate concern that moving cannabis to Schedule III, as advocated by the DHHS, would burden state programs even further and not necessarily make research any easier.
This all leads me around to Dr. Tod Mikuriya’s suggestion from decades ago that a new and exclusive category — Schedule VI — should be established for cannabis in all its forms. I’ve advocated for this in the past, as have others. A new schedule that can accommodate the round-peg-in-a-square-hole aspect of cannabis could be very helpful at this point in time.
Well, as my dear mother would say, “We’ll see.” I can’t wait. This issue has never failed to amaze me, and I am certain that will continue. ❧
References
President Biden’s request to DEA on October 6, 2022
Republican Congressional lawmakers against rescheduling (September 2023)
Former drug officials against rescheduling (October 2023)
Governors urge rescheduling by year’s end (December 2023)
WSJ article “Biden Push to Ease Marijuana Restrictions Sparks Tension (March 2024)
Deschedule or Do Nothing (March 2024)
The U.S. Must Create a New Schedule for Cannabis (2016)