Lawmakers Could Reschedule Marijuana With ‘Greater Speed And Flexibility’ Than Administration Officials, Congressional Researchers Say

Amid a stalled marijuana rescheduling process that’s carried over from the
last presidential administration, congressional researchers are reiterating
that lawmakers could enact the reform themselves with “greater speed and
flexibility” if they so choose, while potentially avoiding 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).

“There are two ways in which substances can be scheduled under the CSA:
Congress can schedule substances by enacting legislation, or the Attorney
General (in conjunction with the U.S. Department of Health and Human
Services, or HHS) can schedule substances via an administrative process
laid out in the CSA,” CRS said.

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.

“Congress placed numerous substances in Schedules I through V when it
enacted the CSA in 1970,” it says. “Since the CSA’s enactment, most
subsequent scheduling changes have been made by DEA via the rulemaking
process, but Congress has at times enacted legislation to schedule
controlled substances or change the status of existing controlled
substances.”

“There are several reasons why Congress might decide to schedule or
reschedule substances via legislation,” it says. “For instance, compared to
administrative scheduling, legislative scheduling may offer greater speed
and flexibility.”

“Administrative scheduling under the CSA proceeds via formal rulemaking,
which generally takes months or years to complete. In making scheduling
decisions, DEA is required by statute to make certain findings with respect
to each substance’s potential for abuse and accepted medical use,” it
continues. “DEA scheduling orders (other than temporary scheduling orders)
are subject to judicial review, including consideration of whether the
agency properly applied the relevant statutory standards.”

To that point, it did take 11 months for HHS under the Biden administration
to complete its review into cannabis and make an initial rescheduling
recommendation. 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.

Congress, on the other hand, could reschedule or deschedule marijuana more
quickly and with a lower threat of a judicial challenge, CRS said.

“Congress is not bound by the CSA’s substantive or procedural
requirements,” the report says. “This means that it can schedule a
substance immediately, regardless of whether the substance meets the
statutory criteria. While scheduling legislation may also be challenged in
court, the scope of judicial review of legislation is typically more
limited than judicial review of regulations.”

It also says legislative action “may be the only way to permanently
schedule large classes of substances” such as fentanyl-related substances,
given the intensive statutory requirements imposed on DEA under the CSA.

“Relatedly, the CSA provides DEA with limited options for regulating
controlled substances,” CRS said. “The CSA established Schedules I-V, with
each schedule carrying a defined set of regulatory controls and penalties
for unauthorized activities. If DEA decides to control a substance under
the CSA, it must place the substance in one of the existing schedules.”

“The agency has asserted some authority to tailor controls to specific
substances, but it cannot create new schedules or implement regulations or
exceptions from control that are not authorized under the CSA. If Congress
wishes to regulate a controlled substance in a way that does not fit within
the existing CSA framework, or allow DEA to do so, it must enact
legislation.”

Additionally, the report notes that while DEA is bound to consider certain
international treaty obligations when it comes to drug scheduling, those
same commitments “do not prevent Congress from exercising its
constitutional authority to enact new laws, even when doing so might cause
the United States to violate its treaty obligations.”

Meanwhile, last month a Senate committee advanced the confirmation of
Terrance Cole to become the administrator of DEA amid the ongoing review of
a marijuana rescheduling proposal that he’s 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 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 understand more where [agencies] are and look at the science
behind it and listen to the experts and really understand where they are in
the process.”

Cole also said he feels it’s appropriate to form a “working group” to look
at the federal-state marijuana law disconnect in order to “stay ahead of
it.”

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 has since left the position.

Most Marijuana Consumers Oppose Trump’s Cannabis Actions So Far, But
Rescheduling Or Legalization Could Bolster Support, Poll Shows

*Photo courtesy of Chris Wallis // Side Pocket Images.*

The post Lawmakers Could Reschedule Marijuana With ‘Greater Speed And
Flexibility’ Than Administration Officials, Congressional Researchers Say
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