GOP Lawmakers Demand Answers From Biden Administration About ‘Unusual’ Marijuana Review Process Behind Rescheduling Push

Two more congressional lawmakers are joining the ranks of GOP members who are challenging what they say is the “unusual” process that led the Biden administration to propose rescheduling marijuana, expressing concern about how the review was carried out and demanding answers.

In a letter sent to Attorney General Merrick Garland and Department of Health and Human Services (HHS) Secretary Xavier Becerra on Thursday, House Energy & Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Subcommittee on Health Chair Brett Guthrie (R-KY) said the “circumstances surrounding this proposed rule are unusual, and we are concerned by the process that led to this determination.”

The lawmakers pointed out that prior cannabis scheduling reviews concluded with denials following rigorous analyses of its medical value and abuse potential, and they questioned why HHS adopted a different review standard for cannabis this round, moving from a five-factor analysis to a two-factor analysis.

While the administration is empowered to alter drugs’ scheduling status, and HHS did still account for various scientific consideration in its latest review, “we believe there are several unanswered questions and policy gaps,” the Republican lawmakers wrote.

After HHS recommended moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA), the Justice Department “declared that this new two-part test is sufficient to establish medical use, which is an unusual deviation from the typical process,” the letter says, adding that they found it further suspect that the Drug Enforcement Administration (DEA) itself indicated that it felt more information was needed before it could accept the rescheduling determination.

While moving cannabis to Schedule III would not federally legalize it, the lawmakers said such a policy change would “cause more confusion” related to the federal-state marijuana policy gap “because it is unclear how the federal government would regulate a Schedule III substance, which should only be dispensed with a valid prescription, while there are twenty-four states that have legalized recreational use for marijuana.”

Additionally, the letter notes that several former DEA administrators, Office of National Drug Control Policy (ONDCP) directors and federal prosecutors have pushed back against cannabis rescheduling, in part because they claim the resulting reduced criminal penalties for certain marijuana-related offenses “could further impede the ability for law enforcement and prosecutors to hold people accountable.”

“We support research into innovative therapies to improve patient outcomes, but we are concerned with how the normal process was circumvented to achieve a result for political purposes and we have a number of unanswered questions,” McMorris Rodgers and Guthrie said, including a list of specific questions they’re asking DOJ and HHS to respond to in a “timely” manner.

Here are examples of the lawmakers’ questions: 

• When determining whether marijuana has a medical use, HHS used their own two-factor analysis instead of the typical five-factor analysis developed by the DEA.
  • a) Please provide an example of this method being used in previous scheduling evaluations.
• Do DOJ and HHS believe the new two-factor test is appropriate for other Schedule I drug determinations? If not, why?
• If marijuana were moved to Schedule III, it is our understanding that it may only be legally dispensed pursuant to a valid prescription and states allowing its recreational use would continue to be out of compliance with federal law. If this rule is finalized, would DOJ enforce federal law?
• Rescheduling marijuana from Schedule I to Schedule III would reduce penalties for certain activities related to the drug, was this considered during HHS and DOJ’s evaluation of moving marijuana from Schedule I to Schedule III? How will this impact DOJ and DEA’s ability to interdict illicit activities involving marijuana?

The administration’s rescheduling proposal was followed by a public comment period that closed on Monday, with more than 40,000 submissions—the majority of which either supported the reform or called for complete descheduling.

But the action has been met with criticism from certain Republican lawmakers, some of whom suspect that the revised review process and rescheduling determination were politically motivated, rather than evidence-based.

On Monday, for example, Rep. Doug LaMalfa (R-CA) condemned the Biden administration’s push to reclassify marijuana, as well as legislative efforts to enact bipartisan cannabis banking reform, because he says the policy changes would “prop up this immoral industry” and give a “green light to the evil that comes from drug use.”

Sen. Bill Cassidy (R-LA) also blasted the Biden administration over what he described as repeated refusals from federal agencies to brief Congress on its plans and justification for rescheduling marijuana, which he argues fuels speculation that the proposed policy change is politically motivated.

Similarly, 25 GOP congressional lawmakers sent a public comment letter earlier this month opposing the administration’s planned rescheduling of marijuana, specifically alleging the government’s recommendation was based on politics rather than science.

At the Republican National Committee convention last week, multiple GOP lawmakers spoke with Marijuana Moment about their own views on how cannabis policy issues such as rescheduling could be impacted if former President Donald Trump wins the November election. They generally deferred to the nominee, but there were mixed opinions about what they would like to see happen.

Rep. Andy Harris (R-MD), for his part, said at the event that “I don’t care” whether rolling back the Biden administration’s marijuana rescheduling move under a potential Trump presidency would hurt the Republican party, because he feels more strongly that the modest reform would endanger public health.

Also, bipartisan congressional lawmakers are now seeking to remove a controversial section of a spending bill that would block the Justice Department from rescheduling marijuana—one of several cannabis- and psychedelics-related amendments to appropriations legislation that have been filed in recent days.

GOP senators have separately tried to block the administration from rescheduling cannabis as part of a standalone bill filed last September, but that proposal has not received a hearing or vote.

Meanwhile, in one recent public comment on the proposed rule, a group representing state-level cannabis regulators recently called on the Biden administration and DEA Administrator Anne Milgram to provide a clear explanation of how rescheduling marijuana would affect federal enforcement priorities and the U.S. government’s interaction with jurisdictions that regulate cannabis products.

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Photo courtesy of Mike Latimer.