Congress can reschedule or deschedule controlled substances such as marijuana with “greater speed and flexibility” and a lower risk of a judicial challenge compared to the administrative process that is currently underway, congressional researchers say.
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In a report published on Tuesday, the Congressional Research Service (CRS) discussed the various mechanisms through which scheduling actions can be implemented, noting the comparative limitations of the process that the Biden administration is undertaking as it seeks to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
After laying out various instances where Congress has stepped in and made a scheduling decision—such as the federal legalization of hemp under the 2018 Farm Bill—CRS then discussed further considerations for lawmakers.
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While the majority of past scheduling actions have been implemented by the Drug Enforcement Administration (DEA), “Congress has broad authority to amend the CSA, including by scheduling, rescheduling, or descheduling substances,” the report says, adding that legislation has been proposed in recent sessions to change the legal status of marijuana and other drugs.
“There are several reasons why Congress might decide to schedule or reschedule substances via legislation,” it says. “For instance, compared to administrative scheduling, legislative scheduling may offer greater speed and flexibility.”
“Administrative scheduling under the CSA proceeds via formal rulemaking, which generally takes months or years to complete. In making scheduling decisions, DEA is required by statute to make certain findings with respect to each substance’s potential for abuse and accepted medical use,” it continues. “DEA scheduling orders (other than temporary scheduling orders) are subject to judicial review, including consideration of whether the agency properly applied the relevant statutory standards.”
To that point, it did take 11 months for the U.S. Department of Health and Human Services (HHS) to complete its review into cannabis and make an initial rescheduling recommendation. DEA then completed a separate review before the Justice Department formally proposed moving marijuana to Schedule III, with a 60-day public comment period open until later this month.
Multiple parties have used the comment period to request an administrative hearing, which could further delay the issuance of a final rule. Lawsuits challenging rescheduling could also become a factor down the line.
Congress, on the other hand, could reschedule or deschedule marijuana more quickly and with a lower threat of a judicial challenge, CRS said.
“Congress is not bound by the CSA’s substantive or procedural requirements,” the report says. “This means that it can schedule a substance immediately, regardless of whether the substance meets the statutory criteria. While scheduling legislation may also be challenged in court, the scope of judicial review of legislation is typically more limited than judicial review of regulations.”
It also says legislative action “may be the only way to permanently schedule large classes of substances” such as fentanyl-related substances, given the intensive statutory requirements imposed on DEA under the CSA.
“Relatedly, the CSA provides DEA with limited options for regulating controlled substances,” CRS said. “The CSA established Schedules I-V, with each schedule carrying a defined set of regulatory controls and penalties for unauthorized activities. If DEA decides to control a substance under the CSA, it must place the substance in one of the existing schedules.”
“The agency has asserted some authority to tailor controls to specific substances, but it cannot create new schedules or implement regulations or exceptions from control that are not authorized under the CSA. If Congress wishes to regulate a controlled substance in a way that does not fit within the existing CSA framework, or allow DEA to do so, it must enact legislation.”
Additionally, the report notes that while DEA is bound to consider certain international treaty obligations when it comes to drug scheduling, those same commitments “do not prevent Congress from exercising its constitutional authority to enact new laws, even when doing so might cause the United States to violate its treaty obligations.”
Certain GOP lawmakers have contended that United Nations treaties to which the U.S. is a party should mean that marijuana cannot be rescheduled as proposed. The Justice Department’s Office of Legal Council (OLC) has addressed that issue, concluding that the government can satisfy those treaty obligations even if it moves marijuana to Schedule III with proper regulations in place.
Meanwhile, although lawmakers have proposed rescheduling and descheduling marijuana as part of a variety of bills, others more recently have attempted to prevent administrative cannabis scheduling changes. A spending bill that advanced through the House Appropriations Committee would enact that restriction, for example.
GOP senators have separately tried to block the administration from rescheduling cannabis as part of a standalone bill filed last September, but that proposal has not received a hearing or vote. Including such a ban in key annual spending legislation is a way for opponents to force the issue forward. It’s far from clear that the Democratic-controlled Senate would go along with proposal, however.
The Appropriations Committee is also directing the Biden administration to account for how it arrived at the decision to reschedule marijuana, while also expressing concerns about cannabis-impaired driving and the market for intoxicating hemp-based cannabinoids
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