3 Reasons to Doubt the DEA Will Agree to Reclassify Marijuana This Year

The agency always drags its feet before saying no, saying yes would require an embarrassing reversal, and the president has passed the buck to Congress.


Jacob Sullum

In a memo it sent to members of Congress on Monday, the Drug Enforcement Administration (DEA) says it hopes to announce by the end of June whether it has decided that marijuana no longer belongs in Schedule I of the Controlled Substances Act (CSA), the law's most restrictive category. The memo, first noted yesterday by Washington Post drug policy blogger Christopher Ingraham, has generated headlines such as "The DEA Will Soon Decide Whether it Will Reschedule Marijuana" and "DEA May Downgrade Marijuana From Schedule 1 Drug." Here are three reasons I think those headlines are misleading:

1. The DEA has a history of foot dragging in response to rescheduling petitions. This is the fourth time the DEA has responded to a petition asking it to reclassify marijuana. It rejected the first three petitions from six to 16 years after they were filed. The fourth petition, filed in 2009 by New Mexico medical marijuana activist Bryan Krumm, and the fifth petition, filed in 2011 by Christine Gregoire, then the governor of Washington, and Lincoln Chafee, then the governor of Rhode Island, are still pending.

Last December, Marijuana.com reported that the DEA had received a scientific evaluation and a scheduling recommendation from the Department of Health and Human Services (HHS), part of the process prescribed by the CSA. The story was based on a September 30 letter from Assistant Attorney General Peter Kadzik to Rep. Earl Blumenauer (D-Ore.) that said the DEA "recently received" the statutorily required input from HHS.

This week's memo reiterates that "DEA has received the HHS scientific and medical evaluations, as well as a scheduling recommendation, and is currently reviewing these documents and all other relevant data to make a scheduling determination in accordance with the CSA." It adds: "Once a final determination has been made, DEA will notify the petitioners. DEA understands the widespread interest in the prompt resolution of these petitions and hopes to release its determination in the first half of 2016." Assuming that happens, the decision (which I am sure has already been made) will be announced seven years after the 2009 petition and at least seven months after the HHS scheduling recommendation. This sort of delay is typical of the way that the DEA responds to rescheduling petitions, and it should not be interpreted as evidence that the agency is giving the issue more careful consideration than it has in the past, let alone that it has changed its position.

2. Agreeing to reschedule marijuana would require a major change in how the DEA interprets the CSA. Schedule I is supposedly reserved for drugs with a high abuse potential that have "no currently accepted medical use" and cannot be used safely, even under a doctor's supervision. It is doubtful that marijuana meets any of those criteria, let alone all three. But the DEA has always insisted that marijuana cannot be moved until its medical usefulness has been confirmed by the kind of expensive, large-scale clinical studies that the Food and Drug Administration demands before approving a new medicine. While such studies have been conducted with marijuana's main active ingredient (which is how Marinol, a capsule containing synthetic THC, was approved by the FDA in 1985), they have not been conducted with the whole plant.

The CSA gives the DEA wide discretion to define "currently accepted medical use," and federal courts have deferred to its interpretation. That does not mean the DEA has to read the law this way, but changing its approach at this point would require a dramatic reversal that could not be credibly attributed to new evidence.

3. The Obama administration says marijuana will be reclassified only if Congress decides to do so. "What is and isn't a Schedule I narcotic is a job for Congress," President Obama told CNN's Jake Tapper in 2014. "It's not something by ourselves that we start changing." Last January, White House Press Secretary Josh Earnest reiterated that Obama had no interest in administratively rescheduling marijuana: "There are some in the Democratic Party who have urged the president to take this kind of action. The president's response was, 'If you feel so strongly about it, and you believe there is so much public support for what it is that you're advocating, then why don't you pass legislation about it, and we'll see what happens.'"

Eric Holder, Obama's attorney general until last year—and therefore the official directly charged with deciding how controlled substances should be classified, a task that he, like his predecessors, delegated to the DEA—took the same line. Even when Holder said, 10 months after leaving the Justice Department, that marijuana "ought to be rescheduled," he added that "Congress needs to do that."

Although Gary Johnson is optimistic that the administration will change course this year, I see no reason to think the DEA's answer to the two most recent rescheduling petitions will be any different from its answer to the first three.