Politics
DEA Judge Issues Order Approving And Denying Witnesses For Marijuana Rescheduling Hearing And Laying Out Next Steps
A Drug Enforcement Administration (DEA) judge has officially ruled on which of the agency’s selected witnesses for a marijuana rescheduling hearing will be able to participate, while laying out the procedure for the administrative process—including how pro- and anti-reform speakers will be able to cross-examine one another.
The order also briefly addressed a motion filed on Monday on behalf of one of the participants that argued DEA itself should be removed from the hearing as a “proponent” of the rescheduling rule due to alleged statutory violations, including “unlawful” communication with the prohibitionist group Smart Approaches to Marijuana. The judge said that he found the argument “wholly unpersuasive” in the context of the group’s defense of its standing in the case, but that he will soon be separately ruling on the merits of the standalone motion.
In any case, with a December 2 preliminary hearing on the rescheduling matter just weeks away, DEA Administrative Law Judge (ALJ) John Mulrooney’s order on Tuesday lists the agency’s chosen witnesses and assesses their legal standing for participation under the Administrative Procedure Act (APA). A key component of the standing determination was whether the participants could establish that they’d be meaningfully
Three of the 25 witnesses who initially asked to take part in the proceedings withdrew their requests, and another two were deemed ineligible to participate. The DEA judge determined that several of the designated participants (DPs) technically lacked standing under the tribunal’s interpretation of the law, but said that they could still join the hearing.
“Standing to appear in an APA agency proceeding can differ markedly from the rigid standing requirements incumbent on those seeking relief in the federal courts,” the order says. And while the agency is required to include certain witnesses with demonstrable interest in the proposed rule, “this is not to say that everyone must be inexorably welcomed to appear before every agency on every issue that touches widely on society or tugs at the heartstrings.”
The ALJ was not provided with copies of the original requests to participate in hearing that were submitted to DEA Administrator Anne Milgram, it notes. Instead, the judge based decisions on supplementary information his office requested after finding that the administrator’s letters regarding the witnesses it chose were insufficient.
All told, the witnesses that are moving forward seem to skew on the oppositional side of the proposed marijuana reschedule rule, but that largely reflects the rules for determining standing, which generally prioritizes those who claim they would be adversely impacted by a proposed rule.
Law enforcement organizations, prohibitionists and Nebraska’s attorney general are among those who will testify at the hearing, for example.
On the pro-rescheduling side, entities like the National Cannabis Industry Association (NCIA), the Connecticut Office of Cannabis Ombudsman and Hemp for Victory have been cleared to participate, despite the fact that the judge determined that the latter two lacked standing.
With respect to NCIA, the judge said that one of the group’s claims of standing was “more nuanced and more persuasive” than its broader position in support of rescheduling. That is, NCIA “posits that a number of its members would be adversely affected by a new definition of tetrahydrocannabinol which is incorporated” in the proposed rule.
However, a “significant weakness in this position is that NCIA has not specifically alleged that any of its members are currently utilizing any particular substances that would be affected (a deficit that could conceivably undermine its standing argument in this regard),” the order says.
Michelle Rutter Friberg, NCIA’s director of government relations, told Marijuana Moment that the association is “beyond proud that we have ‘established standing and may continue to participate in these proceedings,’ especially since all other pro-reform groups didn’t meet the same standard.”
“NCIA will be working with our membership to gather feedback and ensure that the entire cannabis industry is heard throughout these proceedings,” she said.
At the hearing, DEA will be allowed to bring as many witnesses as it wants, while each of the other designated participants are limited to providing testimony from a single witness.
The order also describes the structure of the hearing. First, the government will make its case on the proposed rescheduling rule. Then, pro-rescheduling witnesses will get the chance to speak for up to 90 minutes, followed by the anti-rescheduling participants.
“Anti-Rescheduling DPs may cross-examine all Government witnesses and all Pro-Rescheduling witnesses. Witnesses presented by the Anti-Rescheduling DPs may be cross-examined by the Government and ProRescheduling DPs,” the order says. “In all cases, cross-examination will be limited to approximately twenty (20) minutes per witness for each authorized cross-examiner.”
Hemp for Victory, which will get to join the hearing, is one of two cannabis organizations that submitted a motion to the ALJ on Monday that contested DEA’s role as the “proponent” of the proposed rule to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA).
The filing cited alleged statutory violations that include “unlawful” communication with the prohibitionist group Smart Approaches to Marijuana (SAM), which will also be testifying at the hearing and has strongly opposed the reform.
In a footnote of the order, the judge said he wasn’t convinced that the underlying argument merited consideration with respect to the group’s standing to participate in the hearing. But he said the substance of the motion would still be considered separate from the witness selection order.
“The balance of this requestor’s arguments in favor of standing are wholly unpersuasive. To argue, at this procedural juncture, that the DEA is an improper advocate or sponsor of its own [proposed rule] adds nothing to the standing equation and (at least on the present record) presents little more than an ad hominem distraction from the important advocacy and adjudicative work to be accomplished in these proceedings,” Mulrooney’s order says.
While the judge is asserting that DEA issued the rule and is thus properly appointed as its sponsor, the agency did not in fact sign off on the rescheduling notice and raised a series of questions that signaled to many that it wasn’t on board. Attorney General Merrick Garland ultimately signed the notice, in a departure from precedent on scheduling decisions.
The DEA judge acknowledged that a “separate motion has been filed on this issue and it will be addressed in a separate order.”
Meanwhile, a marijuana and psychedelics researcher is asking the DEA ALJ to postpone its rescheduling hearing due to the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.
About a week after Panacea Plant Sciences founder and CEO David Heldreth filed a lawsuit in federal court, requesting an order halting the cannabis rescheduling proceedings, he submitted a motion to the DEA judge on Monday seeking a stay of the upcoming December hearing.
Mulrooney separately rejected a veterans group’s petition to participate in the upcoming rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change.
For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.
In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.
While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.
In Congress, numerous lawmakers have shared their own perspectives on the proposed reform with DEA and DOJ since the Schedule III announcement was made.
In August, for example, Sen. Chuck Grassley (R-IA) raised concerns about the Biden administration’s justification for recommending marijuana rescheduling, demanding answers to questions from federal agencies about how they arrived at that decision in what he described as a rushed and unconventional administrative process.
A week earlier, top Democratic senators—including Senate Majority Leader Chuck Schumer (D-NY)—sent a separate letter to DOJ’s Garland and DEA’s Milgram urging the agencies to ”promptly finalize” the rule to reschedule marijuana.
While rescheduling would remove certain research barriers and free up state-licensed cannabis business to take federal tax deductions under the Internal Revenue Service (IRS) code known as 280E, it would not federally legalize marijuana, as the Congressional Research Service (CRS) has made known in multiple recent reports.
Meanwhile, two additional congressional lawmakers have joined the ranks of GOP members who are challenging what they say is the “unusual” process that led the Biden administration to propose rescheduling marijuana, expressing concern about how the review was carried out and demanding answers.
Rep. Doug LaMalfa (R-CA) condemned the Biden administration’s push to reclassify marijuana, as well as legislative efforts to enact bipartisan cannabis banking reform, because he says the policy changes would “prop up this immoral industry” and give a “green light to the evil that comes from drug use.”
Sen. Bill Cassidy (R-LA) also blasted the Biden administration over what he described as repeated refusals from federal agencies to brief Congress on its plans and justification for rescheduling marijuana, which he argues fuels speculation that the proposed policy change is politically motivated.
Similarly, 25 GOP congressional lawmakers sent a public comment letter in July opposing the administration’s planned rescheduling of marijuana, specifically alleging the government’s recommendation was based on politics rather than science.
This story has been updated to clarify that the DEA judge’s assessment of a recent motion on DEA’s role in the rescheduling hearing referred to a question of standing, without addressing the merits of the legal filing.
Read the DEA judge’s order on the marijuana rescheduling hearing below:
DEA Judge Rejects Veterans Group’s Petition To Participate In Marijuana Rescheduling Hearing
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