How to reschedule or rescind marijuana under federal law

Rescheduling vs. Cannabis Rescheduling: What’s the Deal? how would it happen

On October 6, 2022, President Joe Biden called on Attorney General Merrick Garland and Secretary of Health and Human Services (HHS) Xavier Becerra to “initiate the process of reviewing how marijuana is scheduled under federal law.”

This process could lead to three possible outcomes: cannabis rescheduling, cannabis postponement, or no change at all. Read on to learn more about the differences between these policies and how the process might evolve in the months and years to come.

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The Federal Controlled Substances Act (CSA) divides any known drug, substance, or drug into different categories based on their potential for abuse, medical uses and known benefits, and safety considerations. The schedule runs from least harmful (Plan V) to most harmful (Plan I).

Marijuana has been classified as Schedule I since the CSA’s inception in 1970, as harmful as heroin.

Reclassifying a drug like marijuana means moving it from one category (Schedule I, reserved for the most dangerous drugs) to another (e.g. Schedule II or Table III). Rescheduling marijuana wouldn’t make it federally legal. Above all, it would lower the barriers to scientific research.

Taking a drug like marijuana off the schedule means removing it entirely from the Controlled Substances Act. Taking marijuana out of the plan would make it legal federally, but it wouldn’t invalidate state laws prohibiting the possession and distribution of cannabis. Alcohol and tobacco are two examples of intoxicating substances that are not federally regulated but are regulated by state agencies.

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Two ways to reschedule or postpone marijuana

The easy way to change the federal status of cannabis is to pass legislation through Congress. Congress has the power to amend the Controlled Substances Act and move marijuana to a different schedule or remove it from the CSA entirely.

The hard way is to administratively reschedule or move marijuana. President Biden set this in motion on October 6th.

Final authority over marijuana’s place in (or removal from) the Controlled Substances Act rests with the US Attorney General. But reaching that decision takes time and many, many smaller decisions along the way.

FDA officials begin preparing their submission

Following Biden’s request, Attorney General Merrick Garland is expected to solicit HHS officials for full medical and scientific input on the appropriate naming of cannabis.

Xavier Becerra, the HHS secretary, then approaches the US Food and Drug Administration (FDA), which is an HHS agency, to help:

• Scientific evidence of the pharmacological effects of cannabis
• The state of the current scientific knowledge about cannabis
• Potential public health risks from cannabis
• The physical and psychological dependency/addiction risks of cannabis
• The actual or relative potential for cannabis abuse
• The history and current pattern of cannabis use and abuse
• Scope, duration and importance of cannabis abuse

(These bullet points are from an excellent report on rescheduling written by Brookings Institute drug policy experts John Hudak and Grace Wallack.)

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The Catch-22 is embedded in the process

Biden’s rescheduling could effectively end as soon as the FDA reviews available scientific research. Robert Hendricks and Alan Rogalski, attorneys for Michigan law firm Warner Norcross + Judd, recently wrote about a Catch-22 created by cannabis’ Schedule I status. You observed:

“The DEA remains powerless to move marijuana without HHS determining that it has an accepted medical use or evidence that it should not be included under the CSA at all. Marijuana’s current Schedule I status makes it difficult for researchers to obtain government funding sources to obtain the evidence-based clinical research needed to support marijuana deferral or deferral. While recent DEA policy has increased the number of marijuana breeders for research, HHS is a long way from obtaining the evidence necessary to support change.”

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The DEA will also likely contribute

At the same time, a similar investigation and recommendation is likely to take place within the Department of Justice’s agency that oversees drugs from a criminal perspective – the Drug Enforcement Administration (DEA).

After seeking advice from the DEA and HHS, Attorney General Garland (or his successor) then recommends either proceeding with a change in the status of marijuana, or no change at all. Legally, the AG does not require President Biden’s input, but such a historic and politically important decision is unlikely to be made without the president’s approval.

There is no statutory time limit for this. This can take a few months or drag on for years. The FDA began its investigation into the appropriate regulation of cannabidiol (CBD) back in early 2019, and we’re still awaiting the agency’s decision, more than three years later.

But that’s not all.

Then a rule-making process begins

If the Attorney General decides to proceed with a schedule change, he will begin a standard federal legislative process.

This requires long periods of time to draft the proposed rule, gather input from various experts and authorities, go through a public comment phase, finalize the rule and finally set the effective date. The rescheduling — and rescheduling in particular — could involve input from other government agencies. The Food and Drug Administration (FDA) would definitely get involved. The Alcohol and Tobacco Tax and Trade Bureau (TTB) and the US Department of Agriculture (USDA) could also contribute and play a role in a post-Determination America.

This rulemaking phase could last another two to three years.

Biden may not have time to get this done

Given the time it will take to implement the proposed administrative rescheduling, it is highly unlikely that anything like this could be accomplished during President Biden’s first term.

If Biden were re-elected in 2024 or succeeded by a Democrat with a positive opinion on the project, that rescheduling or postponement could be completed within that 2025-2029 term.

If a Republican were to win the White House in 2024, he or she could complete the entire process on inauguration day in February 2025. That’s not a sure thing. Many Republican voters support legalization, although the party’s senior congressional leaders tend to vote against it as a bloc.

How did we even end up here?

Congress originally outlawed cannabis through the infamous Marijuana Tax Act of 1937. In the late 1960s, psychedelics proponent and counterculture figure Timothy Leary questioned the constitutionality of the 1937 law. Leary was arrested in December 1965 for possession of cannabis – some seeds and half-smoked joints – while attempting to cross the US-Mexico border. Leary spent years fighting the prosecution. This litigation eventually ended as Leary v. United States, which challenged the 1937 Act on the grounds that it violated the Fifth Amendment right against self-incrimination.

In 1969, the US Supreme Court agreed with Leary. The unanimous decision effectively ended the life of the 1937 Marijuana Tax Act.

Instead of reconsidering the illegal status of cannabis, Congress responded by striving to pass a comprehensive drug ban bill. Thus was born the Comprehensive Drug Abuse Prevention and Control Act of 1970, which updated and consolidated a number of disparate legacy drug laws into one orderly legal framework. The 1970 Act contains the Controlled Substances Act (CSA), which categorizes all known drugs based on their potential for abuse, medical uses, and safety considerations.

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Why the US Attorney General is in control

For decades, drug law debate has revolved around whether drug use is a public health problem or a crime problem. During the creation of the Controlled Substances Act (CSA), President Richard Nixon wanted to give control of the CSA to the Attorney General, the nation’s chief police officer. Congress wanted the Surgeon General and the Department of Health, Education and Human Services (which later became today’s Department of Health and Human Services, or HHS) to assume oversight.

Nixon won. The Ministry of Justice would have the final say, with advice and input from the Federal Ministry of Health.

We’ve been through something like this before

Because of this, today we have the complicated process of rescheduling and/or rescheduling. In 1970, marijuana was included as a Schedule I drug, but Congress knew it wasn’t really as dangerous as heroin, another Schedule I drug. So the House and Senate created a commission to investigate cannabis and an appropriate one recommended classification level for the substance.

President Nixon appointed former Pennsylvania Governor Raymond Shafer, a law and order Republican, to head the commission. In March 1972, after months of admirably open and unbiased research, the Shafer Commission presented its report to the President, which recommended the “decriminalization” of marijuana.

Nixon effectively threw the report in the trash. He and his associates knew that the War on Drugs offered Nixon an easy way to punish his perceived enemies—Democrats, liberals, hippies, and black Americans.

And so marijuana remained a Schedule I drug for the next 50 years.