Democratic Lawmakers Advocate for Prompt Decontrol of Marijuana

On April 23, 2024 we blogged about Republican Senators Mitt Romney, Pete Ricketts and James Risch advising Drug Enforcement Administration (“DEA”) Administrator Anne Milgram to consider U.S. treaty obligations under the Single Convention, 1961, when rescheduling marijuana.  Later Democratic lawmakers, eleven senators and ten members of Congress, also penned a letter to Administrator Milgram and Attorney General Merrick Garland imploring DEA to not only “promptly remove marijuana” from schedule I of the Controlled Substances Act (“CSA”), but to deschedule it altogether.  Letter to Attorney General Merrick and Administrator Anne Milgram, from Senator Elizabeth Warren, Senator John Fetterman, et al., April 24, 2024.

This is the third letter from some of the same Democratic lawmakers to the Attorney General and DEA Administrator on marijuana rescheduling since the Food and Drug Administration (“FDA”) and Health and Human Services (“HHS”) recommended rescheduling in schedule III last August.  The current letter conveys impatience and frustration with the time DEA is taking to conduct its review, noting that it has been eight months since FDA/HHS recommended rescheduling and eighteen months since President Joe Biden directed HHS and the Department of Justice to “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  Statement from President Biden on Marijuana Reform, White House, October 6, 2022.  The lawmakers assert that “[i]t is time” for DEA “to act.”

The Dems note that marijuana’s continued schedule I placement “produces a cascade of severe penalties for marijuana users and businesses, including for criminal records, immigration statuses, employment, taxation, health care, public housing, social services, and more.”  While recognizing that rescheduling to schedule III “would be a meaningful improvement,” they assert that only descheduling, that is decontrolling altogether, would remedy the serious consequences associated with marijuana’s total prohibition.  DEA, they note, “now has the power to determine whether it will continue the failed approach of keeping marijuana in Schedule I.”

The lawmakers recognize that while there may be internal disagreements within DEA about rescheduling, they implore the agency to move “swiftly” because “[t]he longer marijuana remains scheduled in the CSA, the longer our communities face senselessly severe penalties and the longer the marijuana laws of the majority of U.S. states must remain in conflict with federal law.”  And further that “[r]ight now, the Administration has the opportunity to resolve more than 50 years of failed, racially discriminatory marijuana policy.”

At the same time, the lawmakers “trust that the DEA is working as quickly as possible toward a decision on how marijuana is scheduled” as noted by Vice President Kamala Harris in March.  (During a roundtable discussion about marijuana and criminal justice reform, the Vice President characterized marijuana’s schedule I classification as “absurd” but noted “I’m sure DEA is working as quickly as possible and will continue to do so, and we look forward to their work product.”  Vice president criticizes federal cannabis restrictions during White House weed event, March 15, 2024.)

The Dems conclude by walking back their demand somewhat that DEA deschedule marijuana altogether by expressing hope only that “DEA will not make the unprecedented choice to disagree with HHS’s medical finding that a drug does not belong in Schedule I.”

In response to the several of the senators’ earlier January 29, 2024 letter, DEA’s chief of DEA’s Office of Congressional Affairs wrote on April 16th to each that for DOJ, and by delegation DEA, to undertake administrative scheduling action on marijuana, it must follow the procedures established by Congress in the CSA that which includes opportunity for public comments and a hearing.  Letters to Elizabeth Warren, et al., from Michael Miller, April 16, 2024.  The DEA letter notes that DOJ “is carefully following those procedures as it conducts an administrative review of the scheduling of marijuana.”  DEA states that it has the final authority to reschedule a under the CSA “after considering relevant statutory and regulatory criteria and HHS’ scientific and medical evaluation.”

While the Democratic lawmakers advocate for descheduling to remedy the “cascade of severe penalties for marijuana users and businesses” and “more than 50 years of failed, racially discriminatory marijuana policy,” the CSA requires analysis of eight specific factors (“the eight-factor analysis”) for scheduling, rescheduling or descheduling substances of abuse.  Those eight statutory factors are:

1. The drug’s actual or relative potential for abuse.
2. The drug’s scientific evidence of its pharmacological effect, if known.
3. The state of current scientific knowledge regarding the substance.
4. The drug’s history and current pattern of abuse.
5. The drug’s scope, duration, and significance of abuse.
6. The risk to the public health.
7. The drug’s psychic or physiological dependence liability.
8. Whether the drug is an immediate precursor of a substance already controlled. 21 U.S.C. § 811(c).

Albeit the lawmakers’ reasons for quickly decontrolling marijuana are important, compelling and not without merit, but they are not among the eight factors the CSA mandates that DEA consider.