Last week, President Trump told reporters that his administration was considering rescheduling marijuana, and would make a determination over "the next few weeks." It was good to hear an update on the issue, because things had stalled out since Trump took office in January. The cannabis industry is accustomed to operating in limbo, of course; but losing momentum is hard.
I won't prognosticate as to whether marijuana will be reoriented toward Schedule III, in keeping with HHS recommendations and the Biden plan, or whether we'll get some worse or better outcome. Instead, I'm going to explain how this should work. There are four primary paths:
- resume the stalled rulemaking process, to adopt last year's proposal placing marijuana in Schedule III;
- begin a new rulemaking process, presumably with a new proposed rule;
- jettison rulemaking hearings altogether, and DOJ simply publishes a final rule, placing marijuana on Schedule III (or wherever); or
- do nothing. Say, "we like marijuana where it is, science and treaties be damned."
I'll give some high-level thoughts on each of these paths below. One thing to address at the outset, though, is the oft-repeated fiction that Trump could simply re- or deschedule marijuana on his own, via executive order. He cannot. He could, however, direct the process much like Biden did, when Biden issued a 2022 executive order directing HHS to revisit the control status of marijuana. Essentially, Trump could say what he'd like to see, and it will probably happen—especially given the strict fealty shown to him by DOJ.
Option 1: Resume the stalled rulemaking process
Trump could direct DOJ and DEA to resume the terrible pageant of marijuana rescheduling. There are a couple of issues with this one. First, the rulemaking had veered off track, owing largely to bad behavior by DEA. Second, the judge overseeing the process has retired, and DOJ now takes the position that administrative law judges are unconstitutional. Third, this process, which is essentially a litigation, could drag on, and on and on.
Option 2: Begin a new rulemaking process
Trump could direct DOJ to issue a new notice of proposed rulemaking, placing marijuana on III or some other schedule. DOJ could argue that the erstwhile process was improvidently granted, and/or tainted, and has lost any veneer of legitimacy. That rationale would likely stand up to scrutiny, but I'm not sure what could be gained from another public rulemaking circus, especially one that cuts against the recent recommendations of HHS. And again, Trump's DOJ is down on administrative judges.
Option 3: No more hearings; straight to final rule
I explained in a prior post that:
The CSA "vests" the Attorney General with the authority to "schedule, reschedule or decontrol drugs" (21 U.S.C. 811(a)). The Attorney General has traditionally delegated that authority to the DEA administrator (28 CFR 0.100). However, the Attorney General also retains the authority to schedule drugs under the CSA in the "first instance" (28 U.S.C. 509, 510).
[Merrick] Garland should have done that. Instead, he kicked this down to DEA, a body which has shown repeated disdain for law and judicial orders— as I pointed out the very day that HHS made its rescheduling recommendation. Garland's decision also stirred up a hornet's nest of tedious legal arguments around delegation, whether the DEA should be the proponent here, etc.
If the Trump administration decides reschedule marijuana, DOJ should simply write a final rule. Marijuana could then go to Schedule III (or wherever) within 30 or 60 days of rule publication. People could litigate that rule, sure. Given the strength of the HHS findings, though, and the clear statutory authority behind DOJ, it seems like an uphill battle.
Option 4: Do nothing; marijuana stays on Schedule I
To me, this seems more likely than options 1 or 2; and less likely than option 3. I say that with low confidence, mind you. I don't know what is happening behind the scenes.
If the Trump administration decides to leave marijuana where it is, then the ball is back in Congress' court. The CSA vests with Congress the ability to re- or deschedule drugs, of course, in parallel to the executive branch. Congressman Greg Steube (R-FL) again filed his "Marijuana 1-to-3 Act" last week, which would require the Attorney General to transfer marijuana to Schedule III within 60 days of passage. That's one potential bill.
If DOJ isn't tasked with writing a final rule, I'd love to see the Trump Administration demand that Congress take this up, and for Congress to do so. As my colleague Jason Adelstone explained recently, "unlike the executive branch, Congress can create a durable legal framework for marijuana that protects the industry from regulatory whiplash."
Isn't it pretty to think so?
Trump's Cannabis Plays, Explained
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