A Drug Enforcement Administration (DEA) judge is being asked to remove the agency from its role in an upcoming hearing on the Biden administration’s marijuana rescheduling proposal, with a new legal filing citing alleged statutory violations that include “unlawful” communication with a prohibitionist group.
When the Department of Justice formally proposed moving cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA)—consistent with a recommendation from the U.S. Department of Health and Human Services (HHS)—one aspect stood out: The DEA administrator didn’t sign the notice of proposed rulemaking, breaking with historical precedent on federal scheduling proceedings. Instead, it was signed by Attorney General Merrick Garland.
That was one of several factors that led to a motion being filed with DEA Administrative Law Judge (ALJ) John Mulrooney on Monday, seeking corrective action. It was submitted on behalf of Hemp for Victory and Village Farms International, which were both invited to participate in the rescheduling hearing that’s set to begin next month.
The issue isn’t just that DEA Administrator Anne Milgram declined to sign the proposed rule. Throughout that notice, the agency said it needed additional data on a variety of issues—namely cannabis-related health issues and law enforcement concerns—in order to make a complete assessment. The motion argues that the backwards approach to the rulemaking violates federal statute.
“By waiting until the publication of the [proposed rule]—and thus after DOJ had initiated proceedings under [the CSA]—to flag categories of supposedly ‘necessary data,’ DEA ensured that HHS would not get to respond to that data in its recommendation and evaluation,” the motion says. “Even worse, DEA effectively turned the [proposed rule] into a blueprint for the Prohibitionists it apparently was communicating with behind the scenes.”
Another issue that’s arisen concerns DEA’s selection of witnesses to participate in the December hearing, which was scheduled following a public comment period that saw tens of thousands of submissions—a majority of which favored rescheduling or otherwise pushed for bolder reform such as removing marijuana from the CSA altogether.
Hellbound and Down 