DEA Judge Says Rescheduling Isn’t About Whether Marijuana Is ‘Good Or Bad’ At First Hearing, While Laying Out Next Steps

The first Drug Enforcement Administration (DEA) hearing on the Biden administration’s cannabis rescheduling proposal took place on Monday, with proponents and opponents appearing for a largely procedural meeting to prepare for more substantive hearings next year.

The judge overseeing the proceedings made clear that the hearings are not meant to determine “whether marijuana is good or marijuana is bad.”

DEA said last week that the preliminary hearing would “serve as a procedural day to address legal and logistical issues and discuss future dates for the evidentiary hearing on the merits,” with no merit-based witness testimony being taken at this stage.

The center of the case concerns the administration’s push to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).

“Remember, everybody, this is not a trial about whether marijuana is good or marijuana is bad—because I don’t know whether it’s good or it’s bad,” DEA Administrative Law Judge John Mulrooney said. “My issues are much more narrow than that, and has to do with with addiction potential and several other little pigeon holes that I have.”

“So to the extent that I’ve ever had an opinion—which it hasn’t really entered much into my life—it doesn’t matter,” he said.

If the proposed rule is finalized, “the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations,” DEA said in its notice about the hearing.

“If marijuana is transferred into Schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA,” DEA said. “Any drugs containing a substance within the CSA’s definition of ‘marijuana’ would also remain subject to the applicable prohibitions in the Federal Food, Drug, and Cosmetic Act.”

Watch the DEA marijuana rescheduling below: 

 

Before that, however, several supporters of the proposed rule raised a series of concerns, including one attorney representing the Connecticut Office of the Cannabis Ombudsman who took issue with DEA being designated as the “proponent” of rescheduling given lingering uncertainty about the agency’s position on the reform.

“Proponent just means that they’re proposing the rule. It does not mean that they’re supporting the rule,” attorney Matt Zorn said. “I still don’t know if the government is supporting the rule.”

“The government is apparently still compiling the exhibits. They have more attorneys here than any other party, and I just think that they’re sandbagging us,” he said.

The judge responded by asserting that DEA didn’t have an obligation to be a “cheerleader” for the proposed rule. However, he agreed that the agency’s failure to provide a list of exhibits it intends to utilize in the hearing at this stage is a problem and gave the government a directive to “get your exhibit list in by the homework date” of December 13. Participants also have a separate deadline of January 3 to file evidence in support of their arguments.

Mulrooney also addressed motions seeking to remove DEA from the proceedings altogether, in part due to alleged unlawful communications with the president of one designated participant, the prohibitionist group Smart Approaches to Marijuana (SAM), signaling that he considered it statutorily complex and potentially impractical to force the agency to turn over its records on the reported ex parte communications.

“If people were going to be bad people, would they write it down in a memo so that everyone could read it?” he asked Zorn, who filed a Freedom of Information Act request and subsequent lawsuit to obtain any records of the talks. “What are you chasing? Are you chasing a note that somebody wrote, ‘I had an improper conversation with somebody else, I wanted to put it the memo in case someone wants to indict me?'”

In a subsequent back-and-forth with attorney Shane Pennington—who’s representing the designated participants Hemp for Victory and Village Farms International—the judge also said he doesn’t have “authority to issue orders for discovery” with regard to the potential contacts with SAM, and seeking such discovery from the ALJ’s office may prove to be an “unsatisfying enterprise.”

While Mulrooney said it amounted to a “certain amount of self-loathing” to admit, he acknowledged that he’s “unlikely to throw anything you give me into the waste paper bin” if there was an enforceable discovery request, especially in the context of an alleged due process violation.

“I’ll read it. But everybody’s had a pretty fulsome opportunity to file motions, so there’s the best answer I can give you,” he said.

“I don’t have an opinion about marijuana,” the judge later said. “Tons of people think it’s good, and tons of people think that it’s bad. Everybody has to get used to the idea that, however strongly held your beliefs are—I get used to this every day, I have someone reviewing what I do—you could be wrong. Like anybody, any of us could be wrong.”

“That’s not an indictment on the person’s point of view as to whether marijuana is good or bad, but it won’t enter into this determination. I just have to decide a fairly narrow amount of things,” he said. “It’s not about determining whether it’s good or bad. It’s whether something’s going to move my needle one way or another.”

As far as next steps are concerned, a key part of Monday’s hearing was about determining witnesses’ availability for subsequent hearings featuring witness testimony. And Mulrooney indicated that he’s eyeing mid-January for those to begin.

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.

But while DEA is designated as the “proponent” of the proposed rule, there’s been skepticism about where the agency’s leadership actually stands on the issue and whether it may insert bias into the hearing process.

Part of the reason for that skepticism is because Attorney General Merrick Garland—and not DEA Administrator Anne Milgram—signed the proposed rule, breaking with precedent. The drug agency also said repeatedly throughout the notice of proposed rulemaking that it needed additional information before reaching a conclusion about whether a Schedule III reclassification is appropriate.

In a prehearing statement submitted to ALJ John Mulrooney last week, DEA previewed the testimony its own witnesses plan to provide at the upcoming hearing—without clarifying where it stands on the rescheduling proposal.

The agency also said that the U.S. Department of Health and Human Services (HHS)—which carried out a scientific review that informed the proposal to move cannabis to Schedule III—“rejected” its request to provide witnesses.

While the initial preliminary hearing is scheduled for Monday, the merit-based proceedings were delayed until at least early 2025 after Mulrooney notified DEA that it provided insufficient information about the 25 selected witnesses that Milgram submitted.

Meanwhile, Mulrooney also denied a motion to remove the agency from hearings on the cannabis proceedings. However, he sharply criticized responses from DEA and a prohibitionist group over an allegation that they unlawfully communicated during the cannabis rulemaking process.

An attorney subsequently filed a lawsuit against DEA for allegedly violating federal public records laws, requesting that a court compel the agency to disclose communications with SAM.

Separately, the judge denied a request from a cannabis and psychedelics researcher to postpone the upcoming rescheduling hearing over the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.

Mulrooney also rejected a veterans group’s petition to participate in the rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change. That group has asked the U.S. Court of Appeals for the D.C. Circuit to intervene on its behalf.

For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.

In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.

While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.

Trump’s recently announced pick for DEA administrator, Hillsborough County, Florida Sheriff Chad Chronister, backed a cannabis decriminalization policy enacted by local officials.

In Congress, numerous lawmakers have shared their own perspectives on the proposed reform with DEA and DOJ since the Schedule III announcement was made.

In August, for example, Sen. Chuck Grassley (R-IA) raised concerns about the Biden administration’s justification for recommending marijuana rescheduling, demanding answers to questions from federal agencies about how they arrived at that decision in what he described as a rushed and unconventional administrative process.

A week earlier, top Democratic senators—including  Senate Majority Leader Chuck Schumer (D-NY)—sent a separate letter to DOJ’s Garland and DEA’s Milgram urging the agencies to ”promptly finalize” the rule to reschedule marijuana.

While rescheduling would remove certain research barriers and free up state-licensed cannabis business to take federal tax deductions under the Internal Revenue Service (IRS) code known as 280E, it would not federally legalize marijuana, as the Congressional Research Service (CRS) has made known in multiple recent reports.

Meanwhile, two additional congressional lawmakers have joined 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.

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 in July opposing the administration’s planned rescheduling of marijuana, specifically alleging the government’s recommendation was based on politics rather than science.

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Photo courtesy of Philip Steffan.