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The head of the Drug Enforcement Administration (DEA) misspoke when she said President Joe Biden (D) sent a “letter” to top agencies directing a marijuana scheduling review, according to the Justice Department.
Prior to the U.S. Health and Human Services (HHS) making a cannabis rescheduling recommendation last month, DEA Administrator Anne Milgram said during a House Judiciary subcommittee hearing in late July that the president “had sent a letter” to the secretary of HHS and the attorney general “to ask for the scheduling—descheduling process to begin.”
The assertion raised some eyebrows, as the administrative mechanisms behind the ongoing scheduling review are not widely understood. Following the July hearing, attorney Matt Zorn filed Freedom of Information Act (FOIA) request with DOJ and HHS, seeking a copy of the letter Milgram referenced.
HHS responded last month, saying it conducted a search and determined that “there are no records responsive to your request.” Then, last week, the Justice Department sent another reply to Zorn stating that it had consulted with DEA, which in turn explained that the administrator was “referencing the president’s statement of October 6, 2022.”
In other words, the replies say there never was a separate “letter” from Biden to DOJ and HHS. Rather, Milgram was apparently referencing the public statement from the president announcing the scheduling review directive, as well as a mass pardon for people who committed federal marijuana possession offenses.
Given that both HHS and DEA had statements ready when Biden made his October announcement, it stands to reason that there was some level of communication with the agencies in advance, but evidently that did not come in the form of a letter from the president.
Regardless of how the administrative process began, however, the question now is what will ultimately come of the marijuana scheduling review. HHS has completed its end of the process, providing scientific findings and a recommendation to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
DEA is now carrying out its own review before making a final call. Because DEA has jurisdiction over the CSA, it is not bound to follow through on the health agency’s recommendation, but some feel the scientific conclusion, in addition to political and public pressure, will influence DEA to make some kind of change.
Zorn, the attorney who investigated the supposed letter from Biden, directed his blog post about DOJ’s response to Rep. Matt Gaetz (R-FL), the congressman who inquired about the scheduling review during the July hearing with DEA’s Milgram.
Gaetz also sent a follow-up letter to the DEA administrator late last month, similarly requesting a copy of the letter she referenced. The congressman has separately expressed concern that simply moving marijuana to Schedule III may inadvertently lead the pharmaceutical industry to overtake the cannabis industry.
Biden, for his part, hasn’t personally commented on HHS’s rescheduling recommendation, but the White House press secretary did say last month that the president has been “very clear” that he’s “always supported the legalization of marijuana for medical purposes.”
Of course, it’s not accurate to say that Biden has “always” backed cannabis reform. As a senator he championed several pieces of legislation that ramped up the war on drugs.
While marijuana rescheduling would not federally legalize access through current state-level medical cannabis programs, it would free up research into the plant and have significant implications for the marijuana industry.
Congressional lawmakers across party lines have applauded the top health agency’s recommendation. Some have described it as an important “step” on the path to federal legalization. Others have claimed credit for the move, pointing to their years of advocacy around marijuana reform.
Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after the government launched its war on drugs and placed cannabis in the CSA’s most restrictive category.
The change would not, however, fulfill Biden’s campaign pledge to decriminalize marijuana.
Incremental reform could nevertheless bolster momentum for congressional efforts to further change federal cannabis laws, for example a marijuana banking reform bill that Senate Majority Leader Chuck Schumer (D-NY) has described as a priority for the fall session.
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