DEA Faces Legal Challenge as Uncertainty Clouds Plan to Reclassify Marijuana

The Washington Post / David Ovalle

16:57 JST, November 20, 2024

As the federal government considers loosening restrictions on marijuana, the Drug Enforcement Administration is scheduled to convene a court hearing to flesh out the Biden administration’s historic policy shift.

But cannabis-reform advocates this week asked a judge to remove the DEA from its own hearing, arguing the agency has improperly communicated with antimarijuana groups in a bid to torpedo the Biden administration’s proposal. The advocates assert that prominent doctors, researchers and state regulation experts are not being allowed to testify in a hearing before a DEA administrative law judge who will recommend whether easing long-standing restrictions is appropriate.

The unusual legal skirmish highlights the complex divisions within government regarding the proposal that, if it goes through, would not be finalized until well after Donald Trump becomes president Jan. 20.

The DEA did not respond to requests for comment. On Tuesday evening, Administrative Law Judge John J. Mulrooney II offered a window into his thinking about the advocates’ case although he did not make a final ruling. In a decision regarding some groups that can testify, Mulrooney signaled he will side with the DEA, writing the advocates’ request “adds nothing” and “presents little more than an ad hominem distraction.”

The balance of this requestor’s arguments in favor of standing are wholly unpersuasive. To argue, at this procedural juncture, that the DEA is an improper advocate or sponsor of its own NPRM adds nothing to the standing equation and (at least on the present record) presents little more than an ad hominem distraction from the important advocacy and adjudicative work to be accomplished in these proceedings. A separate motion has been filed on this issue and it will be addressed in a separate order.

The reclassification effort is far from a done deal and the politics are messy: Trump and his controversial pick for attorney general have signaled support for reclassifying marijuana, breaking with establishment GOP leaders.

Marijuana is legal for medical use in 38 states and for adult recreational use in 24 states and D.C. but remains illegal at the federal level.

For decades, marijuana has been declared a Schedule I controlled substance – a category reserved for heroin and LSD, drugs deemed to have a high risk of abuse and no accepted medical value. Advocates for marijuana legalization have long argued the federal government exaggerates the risks of marijuana as part of a war on drugs that unfairly imprisoned users and small-time dealers, especially people of color.

Under the Justice Department’s proposal, marijuana would not be legalized federally like alcohol or tobacco. Instead, it would move to Schedule III, a category including prescription drugs such as ketamine, anabolic steroids and testosterone.

The measure could accelerate research into marijuana’s health benefits and boost struggling cannabis companies by allowing them to claim standard business tax breaks they have not been able to claim because they deal with a Schedule I controlled substance.

“There is irrefutable scientific evidence and strong bipartisan support for reclassifying cannabis,” said Adam Goers, chairman of Coalition for Cannabis Scheduling Reform, which includes companies and health and legal experts. “We are confident that, if there is a fair and impartial process, this historic shift will be completed soon.”

The rulemaking process that could lead to reclassifying marijuana is lengthy and includes a hearing in DEA administrative court. It is expected to happen in January or February, according to an order by Mulrooney. The judge pushed back the hearing from December because it was unclear whether the 25 witnesses submitted by the DEA favored or opposed reclassification – or even why they should be allowed to testify, his ruling said.

The DEA typically plays a primary role in proceedings, a role the advocates are seeking to eliminate.

The hearing – and who will testify – has become a flash point for both sides of the marijuana debate, reflecting the high stakes and historic nature of the proposal to reclassify marijuana.

The Veterans Action Group, a nonprofit that advocates for loosening restrictions on cannabis, last week said it was a “travesty of justice” that it had not been allowed to testify about the drug’s medicinal benefits for veterans.

The request to disqualify the DEA from participating in the hearing was filed by Hemp for Victory, another veterans group, and Village Farms, a Florida cannabis company. The DEA included both as potential witnesses, but their attorney, Shane A. Pennington, said in his motion that the exclusion of other witnesses has tainted the fairness of the hearing. The advocates say the alleged DEA contact with antimarijuana groups was improper because it violated administrative law and DEA regulations.

Pennington pointed out in his motion that the DEA approved as witnesses officials from Nebraska, which opposes reclassification and has no established medical marijuana programs. The governor of Colorado, which has regulated a medical marijuana program for decades, asked to participate but was shut out, according to the motion.

“The DEA has stacked the deck” to try “and influence the outcome,” Pennington wrote. Advocates said it is also unusual for the DEA to select who testifies in such proceedings.

Unlike criminal or civil courts, the DEA administrative court generally handles disputes related to its regulatory authority. But it also handles matters related to classifying controlled substances to ensure decisions are made in a fair and transparent way and that “interested persons” can present their views.

The DEA also included as witnesses several law-enforcement organizations and prominent anti-legalization groups such as Smart Approaches to Marijuana, known by the acronym SAM. The motion from the groups advocating for loosening restrictions singled out SAM president Kevin Sabet, saying his posts on the social media site X about having sources within the DEA show improper contact with the agency. The posts regarded DEA’s hesitancy on reclassifying marijuana.

Sabet, in an interview, called the legal motion frivolous.

“If we were colluding with the DEA, there wouldn’t be any hearing at all,” Sabet said.

Judge Mulroney, in his order Tuesday night, said SAM has standing to testify because as a bipartisan policy group that would be affected by marijuana reclassification, it has “has the potential for significant, relevant input.”

The advocates are asking that the Justice Department, which formally submitted the proposed rule, defend its proposal in court. If the DEA handles the case, “the predictable result would be an unfair process, a lopsided, contrived, and incomplete record” that would give opponents ammunition for an eventual lawsuit challenging marijuana reclassification, according to the advocates’ motions.

The Justice Department declined to comment.

Arguing that no one should go to jail for using or possessing pot, Biden in October 2022 ordered the Department of Health and Human Services and Attorney General Merrick Garland to start a review of how marijuana is classified. The Food and Drug Administration, which is part of HHS, conducted an extensive scientific review and determined that marijuana poses a lower public health risk than other controlled substances and potentially offers medical benefits.

The DEA pushed back, questioning whether reclassification violated international treaty obligations regarding drug control and if the health agency used the wrong legal standard in making its determination, according to a Justice Department legal opinion that sided with HHS.

When officials submitted the proposed rule in April, the paperwork was signed by Garland, not DEA Administrator Anne Milgram.

GOP leaders have opposed the proposal. Incoming Senate Majority Leader John Thune (R-South Dakota) was one of 25 Republican senators who in July publicly opposed reclassifying the drug. In a letter to the Justice Department, they wrote that the proposal “was not properly researched, circumvented DEA, and is merely responding to the popularity of marijuana and not the actual science.”

Less than two months before the November election, Trump signaled support for reclassifying marijuana and said he would vote for a Florida ballot measure that would legalize recreational weed for adults. The initiative did not pass.

His nomination of former representative Matt Gaetz (R-Florida) to be attorney general energized marijuana activists and cannabis companies who noted the Trump loyalist had said he would “go easy on marijuana” if he led the Justice Department. He has supported efforts to expand banking system access for cannabis companies and backed a Democrat-sponsored bill to legalize marijuana.

“This is kind of the one part of his political identity that’s always been really out of the mainstream Republican thinking,” said Lee Hannah, a political science professor at Wright State University in Ohio who studies the politics of marijuana. “He sounds more like a liberal Democrat when he talks about cannabis policy.”

But Gaetz faces uncertain confirmation prospects. He is roundly disliked by members of his own party in Congress and faces questions about allegations he had sex with an underage teen, claims he denies.

A traditional candidate – in the mold of Trump’s first attorney general, Jeff Sessions – could try to rescind the proposed rule. But the incoming administration intends to follow through on reclassification, according to an official familiar with the Trump team’s plans who spoke on the condition of anonymity because he was not authorized to speak publicly.

Sabet said if his organization testifies at the DEA hearing, it will stress its belief that the FDA’s scientific analysis was flawed and that the agency has never approved marijuana for use as a medicine.

Sue Sisley, a prominent Arizona marijuana researcher who runs the Scottsdale Research Institute, which studies the medicinal potential of plants and mushrooms, said she was eager to participate in the hearing. But Sisley said the DEA never responded to her written request to testify. Sisley, who once sued the DEA over its failure to greenlight more cultivators to lawfully grow marijuana, said she had hoped to testify about her research.

“We fought hard to get the privilege to grow cannabis under federal license,” Sisley said. “We have a really important perspective to convey.”