Former DEA And HHS Officials Suggest Marijuana Rescheduling Could Be Delayed Indefinitely If Trump Doesn’t Proactively Support It

Without proactive advocacy for marijuana rescheduling from President Donald Trump personally, the process could stall indefinitely, former officials with the Drug Enforcement Administration (DEA) and U.S. Department of Health and Human Services (HHS) say.

What’s more, rescheduling proceedings that are currently paused could be suspended altogether if the new administration reinterprets legal arguments about federal drug policy that were made by the Justice Department’s Office of Legal Counsel (OLC) under the Biden administration.

During a virtual event organized by Ohio State University’s (OSU) Drug Enforcement and Policy Center on Tuesday, the officials pulled back the veil on the drug rescheduling process and weighed in on the fate of the proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).

While HHS and the Justice Department backed marijuana rescheduling following the review initiated by former President Joe Biden, that process stalled near the end of his term due to issues in DEA administrative hearings. It’s unclear when those hearings might resume or how DEA might approach it differently under Trump.

Matt Lawrence, a former senior advisor with DEA, said he sees three potential outcomes for rescheduling in the Trump administration.

The first is that DEA does “essentially nothing at all,” kicking the can down the road and continuing to delay the process without explicitly ending it. That might involve administrative updates along the line, but in essence this would be the path of least resistance.

DEA might alternatively do “something really quick” to finalize the rescheduling rule. But Lawrence said he expects that would be incumbent upon Trump making the issue a “presidential priority.”

Supporters of rescheduling got an unwelcome update on that front last week, however, as the White House Office of Drug Control Policy (ONDCP) released a report that outlined the administration’s top drug policy priorities for Trump’s first year of his second term—and it notably did not mention rescheduling or other cannabis reforms.

Lawrence said he could also see a scenario playing out where DEA moves forward with rescheduling, but the agency determines that it needs to separately propose rules to regulate cannabis as a Schedule III drug to meet international treaty obligations.

Ultimately, however, he said “the biggest thing to predict among those three paths is politics” and whether the administration perceives rescheduling as a political motivator or detractor.

“I leave that to political experts to kind of make that prediction,” Lawrence said. “But if it’s not a political priority—or if it’s a mixed political thing, like it’s a win and a loss—then you’ve got to assume it’s going to be the can-kicking approach.”

Patricia Zettler, a former deputy general counsel at HHS separately said at the OSU event that one factor she’s taking into account is the fact that Trump’s pick to run DEA, Terrance Cole, “has a long record of career service at DEA, which I don’t think bodes particularly well for support of rescheduling.”

“There are probably institutional norms within…DEA that counsel against rescheduling,” she said. “OLC could issue a new opinion—taking a different position about what currently accepted medical use means or something like that. But the easiest thing is to just do nothing, and then marijuana stays where it is.”

“It might be that things stalling out is kind of the path of least resistance forward, particularly if this just isn’t a priority in one direction or another,” she said.

At this point, there hasn’t been any public indication that the Trump administration plans to reconsider the DOJ OLC opinion supporting rescheduling. But both former officials made clear that’s one possibility that could quickly jeopardize the process.

The rescheduling proceedings have generated significant public interest. While moving marijuana to Schedule III wouldn’t federally legalize it, the reform would free up licensed cannabis businesses to take federal tax deductions and remove certain research barriers.

In February, a non-profit organization of pro-marijuana reform doctors filed a brief in a federal appeals court arguing that evidence had surfaced demonstrating that DEA carried out an “arbitrary and capricious review” of witnesses for the cannabis rescheduling hearings and that the process should now be redone.

Prior to DEA Administrative Law Judge John Mulrooney’s ruling that delayed the rescheduling hearings, Doctors for Drug Policy Reform (D4DPR) separately filed a request with the federal appeals court seeking a stay of the proceedings.

Another organization that was also denied participation, Veterans Action Council (VAC), similarly filed a petition with the same court in December to request a review of the agency’s decision to exclude it from the proceedings.

In his notice to former DEA Administrator Anne Milgram, the agency judge explained that this followed his denial of a motion that sought DEA’s removal from the rescheduling proceedings altogether, arguing that it is improperly designated as the chief “proponent” of the proposed rule given the allegations of ex parte communications with anti-rescheduling witnesses that “resulted in an irrevocable taint” to the process.

In January, Mulrooney also condemned DEA over its “unprecedented and astonishing” defiance of a key directive related to evidence it is seeking to use in the marijuana rescheduling proposal.

On the executive side of the issue, the current HHS secretary, Robert F. Kennedy Jr., was previously vocal about his support for legalizing cannabis, as well as psychedelics therapy. But during his Senate confirmation process in February, he said that he will defer to DEA on marijuana rescheduling in his new role.

Former Rep. Matt Gaetz (R-FL)—Trump’s first pick for U.S. attorney general this term before he withdrew from consideration—says “meaningful” marijuana reform is “on the horizon” under the current administration, praising the president’s “leadership” in supporting rescheduling.

After Gaetz withdrew from consideration to lead DOJ, Trump then picked former Florida Attorney General Pam Bondi (R) to run the department, and the Senate confirmed that choice. During her confirmation hearings, Bondi declined to say how she planned to navigate key marijuana policy issues. And as state attorney general, she opposed efforts to legalize medical cannabis.

Adding to the uncertainty around the fate of the rescheduling proposal, Trump’s nominee to lead DEA, Terrance Cole, has previously voiced concerns about the dangers of marijuana and linked its use to higher suicide risk among youth.

Some stakeholders believe leveraging Trump’s stated support for rescheduling and appealing to him by framing the issue as a means to support veterans and patients could motivate the president to advocate for the reform from the Oval Office. Regardless of how other officials in his administration feel, the thinking goes, a mandate from Trump would not go unheeded.

To that point, a marijuana industry-funded political action committee (PAC) is attacking Biden’s cannabis policy record as well as the nation of Canada, with new ads promoting sometimes misleading claims about the last administration while making the case that Trump can deliver on reform.

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Photo courtesy of Chris Wallis // Side Pocket Images.

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