Just a few years ago, the U.S. Drug Enforcement Administration (DEA) successfully dismissed a series of petitions to reclassify marijuana under the Controlled Substances Act (CSA). In this case, the DEA reiterated its long-standing position that removing marijuana from Class I, the most restrictive category, requires the evidence needed to obtain approval of a new drug from the U.S. Food and Drug Administration (FDA). In August 2021, the U.S. Court of Appeals for the Ninth Circuit dismissed a lawsuit challenging that position, saying the petitioners failed to exhaust administrative remedies.
Last week, when the DEA released a proposed rule to move marijuana to Schedule III, the agency appeared to reconsider its controversial interpretation of the CSA. But as Columbia University law professor David Pozen points out, some evidence suggests otherwise. Instead, Attorney General Merrick Garland appeared to achieve the results recommended by the Department of Health and Human Services (HHS) last August, over the objections of the DEA. The recommendation is the result of a review ordered by President Joe Biden in October 2022 and is consistent with his policies judge Marijuana’s Schedule I status is ‘meaningless’.
Biden is right about this. To qualify as Schedule I, a drug should have a “higher potential for abuse” compared to drugs in Schedules III through V and, unlike Schedule II drugs, “not currently accepted for treatment in the United States.” “Medical Purposes”. Schedule I drugs are also considered so dangerous that they are not safe to use even “under medical supervision.” as biden famous In 2022, “we put marijuana in the same class as heroin” and considered it “more serious than fentanyl,” which doesn’t pass the laugh test.
Although the CSA lists three criteria for Schedule I, the DEA insists that as long as marijuana has no “currently recognized medical use,” it must remain in that category. It defines the phrase narrowly, requiring actual FDA approval or studies that are extensive and rigorous enough to meet the agency’s standards for safety and effectiveness.
HHS rejected the test when it recommended moving marijuana to Schedule III, a category that includes prescription drugs like ketamine, codeine-containing Tylenol and anabolic steroids. Instead, it relies on a definition of generally accepted medical use that takes into account “extensive clinical experience related to a variety of medical conditions recognized in many jurisdictions in the United States.” It found “solid scientific support” for cannabis’ use to treat pain, nausea and vomiting, and “anorexia associated with medical conditions.”
HHS also states that “marijuana poses a lower risk to public health than other drugs of abuse,” such as heroin (Schedule I), cocaine (Schedule II), diazepam, and benzodiazepines such as Xanax (Schedule I) Table IV) and alcohol (not arranged). The U.S. Department of Health and Human Services says that while there is “clear evidence of harmful consequences of marijuana abuse, including substance use disorders,” they are “less common and less harmful” than the negative consequences associated with other drugs. It concluded that “the vast majority of people who use marijuana do so in a manner that does not result in dangerous consequences for themselves or others.”
Given the rescheduling proposals announced last week, you might guess that the DEA has backed down on all of these issues. But while HHS’s recommendation was made to DEA Administrator Anne Milgram, the response was considered a decision by Garland, who has direct authority to reschedule drugs under the CSA. Traditionally, the attorney general has delegated this authority to the Drug Enforcement Administration, which is part of the Department of Justice. But in this case, Garland appears to be taking that power back to deal with the unrepentant drug lord.
Proposed rules are published by the DEA and have a DEA docket number. But it was signed by Garland, not Milgram, and began, “The Department of Justice (‘DOJ’) proposes…” As Pozen noted, scheduling changes are typically signed by DEA administrators, beginning with “Drug Enforcement Administration (DEA)”) suggested…” He linked to recent examples here, here, and here.
According to the proposed rule, “the Attorney General agrees with the Department of Health and Human Services’ conclusion” that marijuana currently has accepted medical use. The Attorney General also “agrees” with the assessment that “cannabis has a lower abuse potential than drugs or other substances in Schedules I and II”. The Attorney General also believes that “marijuana abuse may result in moderate or low-level physical dependence, depending on the frequency and extent of exposure.”
Does the DEA agree with these proposals? Obviously not. “DEA has not yet made a decision on its view of the appropriate timeline for marijuana,” the proposed rule states.
All of these clues are consistent with reports that DEA officials are dissatisfied with HHS’s recommendations. Take March as an example, wall street journal According to the report, “Federal officials are divided over President Biden’s push to loosen restrictions on marijuana, and some in the White House want to see this move before the election because he needs the support of young voters.” “People familiar with the matter” were quoted as saying Magazine U.S. Drug Enforcement Administration officials expressed “resistance, saying the drug’s medicinal value has not been proven and the potential for abuse is high.” These internal debates help explain why there was a nine-month gap between HHS’s recommendation and formal acceptance.
Pozen noted that on April 11, the same day Garland proposed adding marijuana to Schedule III, the Justice Department released its Office of Legal Counsel (OLC) opinion on the question of what constitutes an “acceptable medical use.” This opinion supports HHS rather than DEA. “The Drug Enforcement Administration’s current approach to determining whether a drug has ‘currently accepted medical therapeutic use in the United States’ under the Controlled Substances Act is too narrow,” the OLC said. “An alternative two-part approach proposed by the Department of Health and Human Services An investigation is sufficient to determine that a drug has a ‘currently accepted medical use,’ even if the drug does not meet DEA’s current methodology.”
Milgram would rather not discuss any of this. On May 7, a week after the Justice Department confirmed it had accepted the HHS recommendation, Milgram declined to answer questions from a congressional subcommittee about the pending reclassification of marijuana. “Because DEA is ultimately the decision maker on scheduling and rescheduling, and the DEA administrator is that role,” she said, “it would be inappropriate for me to comment on this process or part of that process.”
In this case, the DEA appears to be no “The final word.” Bozen opined that it was “very clear” that the DEA “has in fact continued to resist the rescheduling of marijuana.”
Posen argued that the DEA should never have been entrusted with scheduling decisions in the first place because “it is a ‘drug’ agency with deep material and ideological investments in prioritizing the criminal response to the drug problem. Although HHS should guide these decisions by making science-based decisions, DEA is not required to accept its policy recommendations.
“The scientific and medical determinations that underlie HHS’s ‘currently acceptable medical use’ recommendations are binding on DEA, but only to the extent that it initiates a formal rulemaking proceeding to regulate the drug’s use,” the OLC said. “Once DEA initiates a formal rulemaking , HHS’s decision will no longer be binding on DEA, but DEA must continue to give significant respect to HHS’s scientific and medical decisions, and the CSA will not allow DEA to assume any responsibility. again HHS’s findings can be evaluated at any point in the process.
That leaves considerable leeway for the U.S. Drug Enforcement Administration to decide where a substance belongs. Although the CSA standards are ostensibly based on scientific assessments, the DEA’s scheduling decisions are easily influenced by its anti-drug ideology. Otherwise, it’s hard to explain why the DEA has spent half a century doggedly defending classifications that the president rightly says are “meaningless.”
Of course, Biden’s admission of this is not purely or even primarily out of respect for logic or scientific evidence. as Magazine Biden is trying to energize young voters, whose turnout could be crucial to his re-election, hoping his “marijuana reform” initiatives will encourage them to ignore his long record as a fervent drug crusader. Since these voters overwhelmingly support legalization and Biden opposes it, it’s a tough sell. As a result, he was exaggerating about the real impact of the rearrangement.
Garland’s response to HHS’s recommendation, which overturned the department’s previous firm agreement with the DEA, was in line with his boss’s preferences and was also clearly influenced by politics. After Biden decided, at least in part for political reasons, that marijuana was not Schedule I, his staff followed suit. Perhaps we should praise the DEA for sticking to its anti-marijuana beliefs, no matter how seriously wrong they are.
