DEA’s Marijuana Rescheduling Process Faces New Legal Questions After Supreme Court Ruling

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A new legal analysis argues that the Drug Enforcement Administration’s current approach to Controlled Substances Act scheduling procedures may be on shakier ground following the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. The report was provided to The Marijuana Herald prior to official publication.

The paper, titled The Opportunity to be Heard: Post-Loper Bright Analysis of Controlled Substances Act Rulemaking Procedures, was written by Anthony Deininger, a J.D. candidate at the University of Oklahoma College of Law. The analysis will soon be posted to SSRN and focuses on how drugs and substances are scheduled or rescheduled under 21 U.S.C. § 811.

In the abstract, Deininger writes that “reasonable minds can disagree as to the exact administrative process required to schedule and reschedule drugs and substances under the Controlled Substances Act.” The abstract continues: “The current consensus and position of the Drug Enforcement Agency is that the process follows formal rulemaking. This note argues that post-Loper Bright de novo review better supports a hybrid rulemaking process due to the ambiguous language of 21 U.S.C. § 811(a)(2).”

The analysis centers on language in federal law requiring that rules by the attorney general under the Controlled Substances Act be made “on the record after opportunity for a hearing” under rulemaking procedures in the Administrative Procedure Act.

Deininger argues that the language is ambiguous because the statute points broadly to the APA rather than clearly requiring either informal rulemaking under Section 553 or formal rulemaking under Sections 556 and 557. Before Loper Bright, courts often deferred to an agency’s reading of ambiguous statutes under Chevron. But with Chevron overturned, Deininger argues that courts must now conduct their own review of the statute rather than deferring to DEA’s interpretation.

“Because Chevron deference no longer applies, the DEA cannot unilaterally interpret ambiguity in section 811(a)(2) to require formal rulemaking,” the paper states.

The paper also argues that the phrase used in the Controlled Substances Act is not identical to language previously recognized by the Supreme Court as triggering formal rulemaking. For that reason, Deininger says the process should not automatically be treated as fully formal.

“The process required under the Controlled Substances Act is properly interpreted as a hybrid rulemaking process that includes some elements of informal rulemaking and some elements of formal rulemaking,” the paper states.

The analysis applies directly to marijuana rescheduling, an issue that has drawn heightened attention since the federal government moved to reschedule certain marijuana products. Deininger points to the scientific and medical nature of scheduling determinations, noting that the Controlled Substances Act requires consideration of eight factors, including abuse potential, pharmacological effects, scientific knowledge, patterns of abuse, public health risks and dependence liability.

According to the paper, those factors are largely empirical and can be addressed through written submissions and scientific records, rather than a trial-like oral hearing before an administrative law judge.

“As applied to the ongoing rescheduling of marijuana, the hybrid-incorporative rulemaking structure of the Controlled Substances Act and the first principles of due process counsel that the hearing standard governing the ‘opportunity for a hearing pursuant to [the Administrative Procedures Act]’ is properly satisfied through the informal rulemaking standards of section 553 notice-and-comment procedures,” the paper states.

The paper also argues that even if formal rulemaking applies, an oral hearing is not necessarily required in every case. Deininger writes that Section 556(d) allows oral or documentary evidence, rebuttal evidence and cross-examination only as needed for “a full and true disclosure of the facts.”

In the case of marijuana rescheduling from Schedule I to Schedule III, the paper argues that the record can be developed through the Department of Health and Human Services’ scientific and medical evaluation, DEA’s proposed rulemaking process and public comments.

Deininger contrasts that with a hypothetical move in the opposite direction, such as rescheduling marijuana from Schedule III back to Schedule I. In that scenario, the paper says businesses could raise stronger due process concerns because of possible property interests and reliance interests tied to state-legal marijuana markets.

The paper concludes that more examination is needed into whether expedited oral hearings scheduled for June 2026 would satisfy the opportunity to be heard if due process protections apply, while also raising questions about possible ex parte communication concerns involving meetings between federal officials and parties affected by the proceedings.

Overall, the analysis argues that the post-Loper Bright legal landscape makes DEA’s reliance on formal rulemaking less certain and gives courts a stronger role in deciding what process the Controlled Substances Act actually requires.