DEA rescheduling hearing begins — welcome to the upside-down

Over the next two weeks, the Drug Enforcement Administration will conduct a historic, albeit fast-tracked, administrative hearing pursuant to the DOJ’s “Final Order” rescheduling cannabis to Schedule III in the hands of a state medical licensee or approved patient.

The hearing will consider the broader rescheduling of cannabis.  

This is important. Rescheduling, particularly under a Republican administration, should motivate — and will likely ultimately force — states without medical access to allow it in some form, and will ultimately expand patient access elsewhere. MPP is preparing to be on the ground in many of those states to make that happen in 2027.

And the hearing itself is important because any court reviewing the final rule coming out of this process will have only the record to review, and the hearing IS the record. Opponents will need to discredit the FDA and HHS scientific reviews and the eight-factor analysis, including “currently accepted medical use” and abuse potential. It’s not a low bar for the opponents, but a less than robust record here might well help them now or in litigation later.  

But here is where it gets weird for those of us who have been at this awhile. In the hearing, the DEA — which has spent decades resistant (to put it mildly) to removing cannabis from Schedule I — will advocate on the side of rescheduling.

Wait, what?  

This is, shall we say, an abrupt about-face for the DEA, which will be arguing for the very first time in its long and not always forthright history that cannabis does, in fact, meet the requirements — established medical value and a moderate to low potential for addiction and abuse — for removal from Schedule I. 

What’s more, while multiple opponents of rescheduling will have the opportunity to both call and cross-examine witnesses in this hearing, the DEA, which, by its own admission, “has not yet made a determination” as to appropriate scheduling, will be the only advocate in favor, calling just two direct witnesses and conducting all of the cross-examination of opponents. 

Multiple reform-minded organizations, both industry and advocacy, including MPP, petitioned to participate in the hearing, providing detailed lists of experts and topics, but the DEA rejected us all. They ruled that only opponents who claim a potential adverse impact have standing.

Both NORML and Last Prisoner Project have submitted letters requesting emergency reconsideration of that denial on the grounds that their constituents are, in fact, adversely impacted by leaving it at Schedule III because they (and we all) need it descheduled entirely.  As of the opening of this hearing, they have received no response.

An Administrative Law Judge — selected by Acting AG Blanche — will conduct the hearing and will issue an opinion. But that opinion is not binding, and the final decision on whether and how cannabis will be rescheduled remains with the DEA Administrator. 

It bears watching to see whether and how strongly the DEA makes a case designed to support a full Schedule III designation, versus strictly for what’s outlined in Blanche’s Order — different schedules depending upon who holds it — or for something else. The hearing and the opinion ARE the public record upon which the Administrator will ostensibly make his ruling, and how they approach this will say a lot.

But “watching” may be difficult as the DEA has declared that the revolution will NOT be televised (er, that the hearing will not be livestreamed), and that only a limited number of observers will be allowed inside the room. In response, news organizations, including Marijuana Moment, have submitted requests for reconsideration of that decision.

For the cannabis community — advocates and industry alike — trusting the DEA to do the right thing is a hard sell. Many fear that the DEA has an outcome in mind — rescheduled or not — that will ultimately reduce legal access for consumers and significantly impact the size and diversity of the currently legal industry. 

And given the rushed process, the shutting out of advocates, the hand-picked judge whose opinion is non-binding, the thin record in favor of rescheduling likely to emerge from this process, and the unstreamed closed door hearing, this certainly has the look of a set-up. Frog and the scorpion and all of that.

But if it is a set-up: Set up to do what?

No fair and fulsome hearing on the medical use of cannabis could possibly end with cannabis in Schedule I. In fact, no honest assessment of cannabis and the myriad ways and reasons that people use it could justify scheduling the plant at all. 

In 1984, Administrative Law Judge Francis Young presided over just such a fair and fulsome hearing in response to an administrative petition filed by NORML a full 12 years earlier (the DEA was clearly in no rush to have this conversation). In that hearing, the agency argued against removing cannabis from Schedule I. But after weighing the evidence, Judge Young found that “By any measure of rational analysis, marijuana can be safely used within a supervised routine of medical care” and that “it would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”    

Yet despite Judge Young’s opinion, the DEA has continued to do just that for the past 40 years.

This time, however, the impetus for the hearing came not from NORML but from the DOJ at the explicit direction of the White House. 

And when this White House wants something done, the political appointees running the agencies — including the Acting U.S. Attorney General — tend to jump to make it happen. Even if those marching orders fly in the face of their agency’s historic predilections. 

This has left some others in and around cannabis feeling confident that the rescheduling order will not only stand, but expand to a full Schedule III designation.

All of which leaves long-time cannabis policy observers — whose cynicism and distrust of the feds on this issue is well-earned and objectively reasonable — with a number of questions:

Having ignored their own judge’s opinion on scheduling for 40 years, an opinion which came out of a far more robust examination of the evidence than this hearing is likely to produce, and having never once in their history advocated for marijuana’s removal from Schedule I (in fact, quite the opposite), and despite an apparent push from the White House to move rescheduling forward, is the DEA even for real here? Or is this set up to fail? 

Even if we stipulate good faith on the part of the DEA, and given that the agency has itself “not yet made a determination” on scheduling, will the DEA, which has historically been largely ignorant — willfully or otherwise — and dismissive of cannabis’ medical value, make an effective case in favor of rescheduling?

Will the DEA, as advocates, attempt to lay out the case for full re-scheduling, or simply for the partial rescheduling already achieved via the Final Order - a bifurcation unique among scheduled substances?

Even if the DEA makes that case faithfully and expertly, and even if the opinion recommends and the final rule determines  that cannabis, the plant, belongs on Schedule III, will this truncated and opponent-dominated hearing build a public record robust enough to withstand judicial scrutiny later? Or will any “victory” be unnecessarily vulnerable to challenge? 

Or — and please forgive the hint of cynicism that comes from decades of real experience — might that be the idea?

Or are they angling for something else?

But at the end of the day, given the way this administration does the business of policy, the most important question may simply be what the White House wants to see happen, both in the hearing and going forward. And why.

Advocates have spent decades fighting the DEA, trying to remove cannabis from Schedule I. Today, a hearing kicks off to make that happen. But the advocates won’t be in the room, and the DEA, which has set up a process that looks from the outside as if it’s designed to ram through a pre-determined result of one kind or another, is suddenly representing the reform perspective, and saying, in effect, “we got this.” 

Can we trust them to shepherd this historic and long-overdue (if still not good enough) correction to federal policy?

Stay tuned.