The U.S. Supreme Court’s landmark decision to significantly curtail federal regulatory agencies’ power has triggered a fresh round of uncertainty about the status of marijuana rescheduling.
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But none of this uncertainty is expected to disrupt the Biden administration’s rescheduling process, policy and administrative law experts told MJBizDaily.
The court on Friday ruled 6-3 along partisan lines that courts no longer must give deference to federal agencies’ interpretation of laws when Congress leaves ambiguity, marking an end to the so-called Chevron doctrine, named for a 1984 court case.
In the past, courts “hand(ed) over their judicial power to interpret to the actual subject matter experts in the room – the regulators,” Deb Tharp, head of legal and policy research at NuggMD, an online provider of medical marijuana recommendations, told MJBizDaily via email leading up to the Chevron decision.
Consequences of ruling?
Speculation about what consequences the Chevron ruling might present for existing state-regulated marijuana markets include questions about federal agencies’ ability to issue future nonbinding guidance such as a new Cole memo as well as fresh doubts over whether the Drug Enforcement Administration will be able to rein in intoxicating hemp products such as delta-8 THC and THCA.
But the ongoing formal rescheduling process – the DEA is weighing downgrading marijuana from Schedule 1 to Schedule 3 of the Controlled Substances Act as soon as this fall – likely won’t be significantly impacted, according to attorney Shane Pennington, a partner at Porter Wright’s Washington, D.C., office who has explored the topic extensively.
“I still feel really good about this,” Pennington told MJBizDaily in a phone interview Monday.
“If you really scrutinized (Chief Justice John) Roberts’ opinion, there’s really a lot of good stuff.”
In an ironic twist, past efforts to reschedule marijuana have been dismissed in part because of courts’ reliance on the Chevron doctrine.
That reliance allowed the DEA to apply its own standard when determining marijuana did not have a currently accepted medical use.
But in the current rescheduling process ordered by President Joe Biden in October 2022, the Department of Health and Human Services (HHS) determined in August 2023 that, based on a new two-part standard, cannabis does have a currently accepted medical use.
Based on that advice from the HHS – and an opinion from the Department of Justice’s Office of Legal Counsel – U.S. Attorney General Merrick Garland issued a proposed rule this past May to reclassify marijuana as Schedule 3.
That decision “is the most intensely scrutinized, intensely researched, commented-upon thing we’ve ever had,” Pennington said.
‘Little ambiguity’
In his 35-page opinion on the Supreme Court overruling the Chevron doctrine, Roberts wrote that federal law directs courts, rather than administrative agencies, to “decide legal questions by applying their own judgement.”
But there’s little ambiguity that Congress gave the HHS clear authority on questions of science and medicine, Pennington said.
And that deference is unaffected by the end of Chevron.
“That’s just as binding today,” he said.
Other questions about the DOJ’s analysis that U.S. obligations under international treaties prevent rescheduling also are addressed in the Chevron decision, Pennington said.
Challenges continue
There likely will be challenges to rescheduling based on – or at least referencing – Friday’s ruling.
“We still have work to do. There’s going to be litigation,” Pennington added.
Other ongoing cases, such as a lawsuit challenging the constitutionality of federal marijuana prohibition, also are unlikely to be directly affected.
And predictions that the ruling could be applied in attacks on state marijuana regulations around licensing or social equity provisions are “highly speculative at best,” said Shaleen Title, an attorney and former Massachusetts state regulator.
Meanwhile, Tharp wrote that “states have their own versions of Chevron deference and will likely adapt their deference policies based on the (Supreme Court’s) decisions.”
“More states will weaken deference as well and empower state courts to set the standards by which cannabis businesses operate,” she added
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