Thoughts on the Terrible Pageant of Marijuana Rescheduling

It’s been a wild week within the rulemaking round marijuana rescheduling, to say the least. I’ve began writing about it a few instances, solely to be whipsawed by filings, rulings, distinguished scorching takes, distinguished rebuttals, and extra. All whereas making an attempt to do my actual job right here on the agency.

Under are my ideas on the state of this horrible pageant, in FAQ format.

What’s even happening proper now?

Let’s begin with the procedural posture. Marijuana rescheduling is mired in an administrative rulemaking course of, whereby the Drug Enforcement Administration (DEA) is the hapless, cynical “proponent” of a proposed Division of Justice (DOJ) rule.

Particularly, in Might of 2024, DOJ appointed DEA to hold its water on transferring marijuana from Schedule I to Schedule III of the Managed Substances Act (CSA). DOJ’s advice takes the type of a Discover of Proposed Rulemaking (NOPR). The Discover was issued as a result of President Biden, in October of 2022, directed the Division of Well being and Human Companies (HHS) to revisit the Schedule I standing of marijuana. HHS did so in collaboration with its downstream company, FDA, and advisable Schedule III. DOJ then proposed the rule to reschedule.

Quick ahead to this week. Halfway by the rulemaking course of, DEA Chief Administrative Legislation Choose John J. Mulrooney, II, issued an order on Monday, January thirteenth, cancelling the merit-based proceedings that had been set to start on Tuesday, January twenty first, and granting an interlocutory enchantment. The Choose so dominated on a movement by a small however steely crew of pro-Schedule III witnesses, who had been chosen by DEA to testify within the continuing. This intrepid crew is led by Village Farms, Worldwide, Inc. (Let’s name them the “Villagers”.)

Choose Mulrooney’s order agitated the web cesspit of hashish legislation discourse, mightily. Sure individuals had been fairly upset with the Villagers, whereas others rushed to their protection. Extra on that beneath.

However what did the Choose truly say?

The Choose mentioned a number of exceptional issues, the likes of which we don’t typically hear in administrative proceedings. Alas I can’t study all of them on this small house. Nevertheless, most prominently, His Honor reprimanded DEA for “unprecedented and astonishing defiance” of an evidential directive. He additionally characterised DEA’s unhealthy conduct as particularly, unusually unhealthy, “even among the many quite a few extraordinary and puzzling actions taken up to now by the Authorities through the course of this continuing.”

Additional, he cited the Villagers’ allegations towards DEA that:

“exhibit a puzzling and grotesque lack of know-how and poor judgment from high-level officers at a significant federal company with a wealth of prior expertise with the [Administrative Procedure Act].”

As somebody who used to go to court docket, I can inform you that once you write issues like that, it’s loads of enjoyable to have the choose repeat them.

Lastly, Choose Mulrooney defined that he’ll think about sanctions towards DEA, which, woah!

How lengthy is the delay?

It’s going to be a minimum of three months, buddies. Might be extra. And there are additional developments that might distend this already sorry state of affairs.

Foremost amongst them are imminent adjustments to DOJ and DEA personnel with the incoming Trump administration; and the associated query of whether or not that administration will weigh in on rescheduling a technique or one other. As Trump’s Lawyer Basic, Matt Gaetz would have been nice for Schedule III prospects, given his non-public love of managed substances, and his public statements on marijuana reform. Pam Bondi, properly, perhaps not a lot. As to Trump, the person himself endorsed rescheduling on the marketing campaign path, for no matter that’s price.

Is the listening to cancellation good general for Schedule III prospects?

In the long run, I consider that it’s. Rulemaking is the method of creating a file. The method, in addition to its consequence, is topic to litigation and enchantment. Because of this, you desire a good file.

Interlocutory appeals just like the Villagers’ are seldom granted, however the Choose granted this one as a result of DEA’s flagrant disrespect for the rulemaking course of— of which it’s proponent, no much less! Choose Mulrooney is each making and defending the file, and guarding towards some later enchantment primarily based on the truth that DEA’s shithousery tarnished that file.

The Choose will quickly study allegedly inappropriate ex parte communications by DEA with prohibitionist events, evidentiary dilemmas, and different unsavory issues that had been totally avoidable. Anticipate extra fireworks to return.

Why is the hashish trade divided over the listening to cancellation?

Many individuals really feel that this cumbersome and basically political course of might come to a halt, owing to extreme delay. It’s making them nervous.

An lawyer for the Nationwide Hashish Business Affiliation (NCIA) — who, like me, is just not an administrative litigator — lamented that Choose Mulrooney’s order arises from a “procedural sideshow” attributable to the Villagers. The NCIA — which has by no means been in a position to transfer the needle on rescheduling (or a lot of something) — now argues that the Villagers, though pro-Schedule III, are undermining Schedule III by litigating the rulemaking.

The cost was not properly taken. The Villagers replied that their advocacy is important to make sure a balanced file and rulemaking, and that it’s DEA, not them, which has imperiled Schedule III. The Villagers have a powerful ipso facto argument at this level— Choose Mulrooney granted the interlocutory enchantment, in spite of everything.

I’m not going to summarize the arguments of both aspect additional, however you’ll be able to learn the NCIA lawyer’s cost right here, and the Villagers’ response right here. Or, you’ll be able to watch lawyer Shane Pennington with an absolute fireball of an interview right here. (Shane is the executive litigator representing Village Farms.) I’m with the Villagers.

Is the Choose being honest?

I feel he’s. He’s paying consideration, and he’s sensible, and he has dominated rapidly and decisively all through the method. Typically talking, Choose Mulrooney’s rulings have been evenhanded. To that time, we’ve additionally seen him take the Villagers to activity all through the proceedings, together with on big-ticket objects, comparable to their demand that DEA be eliminated as proponent on this rulemaking. Total, the Choose is in a troublesome place; however he’s definitely working laborious.

If the Villagers didn’t screw this up, who did?

Do you could have a few hours? I’ll begin from the highest and attempt to be transient about it.

Joe Biden screwed up

First, Biden screwed up by placing us into an administrative course of to reschedule marijuana, again in October of 2022. I’ve been saying and penning this persistently all through.

Keep in mind: within the 2020 marketing campaign, Biden promised to “decriminalize using hashish and mechanically expunge all prior hashish use convictions.” He didn’t try this, and even give it a shot— together with when his social gathering had management of Congress. Final 12 months, when he introduced his bid for re-election, I graded him a gentleman’s “C” for his hashish coverage efforts. And I once more criticized him for “passing the buck with rescheduling, placing us on an unsure, circuitous path.”

If Biden didn’t need to cope with Congress, he additionally might have leaned on Merrick Garland, as Lawyer Basic, to begin rescheduling proceedings. He didn’t try this, both.

DOJ and Merrick Garland screwed up

DOJ screwed up. Merrick Garland screwed up. Right here, it’s necessary to grasp that the NOPR offers that DOJ itself will difficulty the ultimate rule. Garland himself signed the NOPR in his official capability as Lawyer Basic.

All of that was excessive and tight, as a result of the CSA “vests” the Lawyer Basic with the authority to “schedule, reschedule or deregulate medicine” (21 U.S.C. 811(a)). The Lawyer Basic has historically delegated that authority to the DEA administrator (28 CFR 0.100). Nevertheless, the Lawyer Basic additionally retains the authority to schedule medicine beneath the CSA within the “first occasion” (28 U.S.C. 509, 510).

Garland ought to have finished that. As a substitute, he kicked this all the way down to DEA, a physique which has proven repeated disdain for legislation and judicial orders— as I identified the very day that HHS made its rescheduling advice. Garland’s determination additionally stirred up a hornet’s nest of tedious authorized arguments round delegation, whether or not the DEA ought to be the proponent right here, and so on.

DEA and Anne Milgram screwed up

Let me depend the methods.

The NOPR sought submissions from “ individuals” needing to take part within the listening to. “ Individuals” is outlined in 21 CFR 1300.01 as “any individual adversely affected or aggrieved by any rule or proposed rule issuable” beneath 21 USC 811 (my italics). You actually should squint to see how the Villagers and others is likely to be adversely affected by a transfer to Schedule III. The identical may be mentioned of many opposing social gathering witnesses chosen by DEA. So why did DEA invite them? Why so many?

In the end, Mulrooney permitted the inclusion of all of those witnesses again in November, partly as a result of DEA chosen them, and partly primarily based on His Honor’s consideration that their participation would “meaningfully help the decisionmaking.” That is likely to be true, though the Schedule III naysayers and yeasayers will doubtless provide trucksfull of ineffective, duplicative testimony. So once more, why have witnesses within the first place?

Milgram and DEA ostensibly needed a listening to as a result of marijuana rescheduling is a matter of public import. However a listening to wasn’t needed. The truth is, none of this was actually needed. As I identified again when this goat rodeo commenced, DEA might have issued an Interim Closing Rule, instantly, placing marijuana on Schedule III final 12 months. (DEA does this on a regular basis, by the way in which, together with with hemp and lots of different issues.)

I’m with the pro-Schedule III witnesses in that I’ve no religion in DEA. My colleagues have written on this weblog since 2015 that DEA must be disbanded. I’m with them, in that I don’t really feel optimistic about DEA’s strategy to the remainder of these proceedings. How might anybody— no matter who subsequent sits in Milgram’s chair?

What’s happening in parallel proceedings?

Except you might be much more within the weeds on these items than somebody like me (during which case, I’m sorry), I don’t assume parallel proceedings are price your consideration. Nevertheless, for completion:

FOIA litigation

Relentless DEA foe Matt Zorn not too long ago sued DEA over within the D.C. Circuit on a FOIA request. He sought an order requiring DEA to instantly flip over sure emails and communications which can exhibit DEA’s contempt for marijuana rescheduling and the rulemaking course of, and collusion with prohibitionists.

The court docket dominated towards his request for a preliminary injunction on January 6. The ruling was not notably shocking — injunctions are powerful to get — and that case isn’t over. It could possibly be mooted sooner or later, although.

Excluded social gathering litigation

Out within the Western District of Washington, DOJ informed a federal court docket on January fifteenth to pause a lawsuit by Panacea Plant Sciences difficult the rescheduling course of. This follows on Choose Mulrooney’s earlier denial of the plaintiff’s request to postpone the rescheduling listening to over “improper blocking” of witnesses.

Each Panacea and DOJ now agree that the litigation ought to be paused, as a result of Mulrooney granted the interlocutory enchantment and canceled subsequent week’s hearings. So this one’s on ice for now, too.

I’m nonetheless longing for Schedule III

Pals, nothing is ever straightforward in hashish.

Within the slim context of this rulemaking, it actually comes down this: a bunch of individuals, a lot of them legislation enforcement officers, are arguing to a reasonably sensible Choose that they know higher than HHS (who’re scientists, docs, and so on.) concerning the medical advantages and harms of marijuana.

HHS made an exhaustive, 250 web page discovering that marijuana has present accepted medical use and doesn’t belong on Schedule I. And, whereas the CSA is obvious that whereas DOJ maintains remaining authority to reschedule marijuana, it is usually clear that HHS’ suggestions “shall be binding … as to [] scientific and medical issues.”

So let’s see if DEA can truly un-ring this bell, assuming that’s the precise motive. I don’t assume it might probably, particularly whereas being uncovered by the Villagers, reprimanded by its personal administrative legislation choose, and customarily held to account.

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For extra on this sequence, try the next posts: