President Joe Biden’s surprise order last week that two of his biggest federal agencies “expeditiously” undertake a review of marijuana’s illegality as a Schedule 1 controlled substance provided more questions than answers for many in the cannabis trade.
Green Market Report spoke with the Brookings Institution’s John Hudak to learn more about what Biden’s legal options are for rescheduling – or descheduling – cannabis.
According to Hudak, the order Biden issued was – under federal law – pretty much his only option if he actually wants cannabis legalized in some form. The president doesn’t have the power, as many in the industry have hoped and claimed, to issue a unilateral executive order removing marijuana from the list of controlled substances.
“The executive order bit is something that has been made up and has been floating around cannabis advocacy circles for years,” Hudak said. “There is a precise mechanism in the Controlled Substances Act that the president and the administration is required to follow.”
What comes next?
Instead, the announcement establishes a study period of undetermined length to be undertaken by both the departments of Health and Human Services and Justice, Hudak said, after which the representatives of both agencies will present their findings and policy recommendations to Attorney General Merrick Garland.
Because of the CSA rules, the rescheduling or descheduling question will be left to Garland, not the president, Hudak explained.
HHS will study the health-related aspects of rescheduling cannabis, such as:
- The impact to public health
- Medical efficacy
- Accepted medical uses
- Side effects
The DOJ, on the other hand, will take a broader approach and look at “health-related issues and crime-related issues,” Hudak said.
Until the decision point, Hudak said the study process by HHS and DOJ will be largely behind closed doors, without much opportunity for industry stakeholders to provide suggestions, though the agencies could choose to solicit input.
“This is not an open session,” Hudak said of the upcoming process. “If the past is any indication … this tends to be a very quiet process.”
However, if Garland does decide to move cannabis on the controlled substance schedules, that decision will be followed by a regulatory process, which could take years and would include public comment periods.
To tide over the existing industry while that rulemaking happens, Hudak said, Garland could also issue a “temporary emergency rule” to keep the industry operational.
There’s also no prescribed timeline for any formal outcome, Hudak said.
But because the entire situation is inherently political, Hudak believes the administration will push to for a decision before the end of Biden’s first term in office.
Hudak also noted that the Obama administration went through a lengthy review of cannabis’ status as a Schedule 1 narcotic in 2016 and decided to maintain the status quo.
Now, Hudak said, he thinks there’s ample evidence for Garland to justify rescheduling cannabis to Schedule 2 or Schedule 3, but added he would be “baffled” if the attorney general descheduled marijuana entirely, and cited the “implications for broader policy change.”