Senators Tell DEA To Fully Legalize Marijuana, Demanding Answers On Rescheduling Process

Twelve senators are calling on the Drug Enforcement Administration (DEA) to fully legalize cannabis and answer questions about the agency’s ongoing scheduling review.

In a letter sent to Attorney General Merrick Garland and DEA Administrator Anne Milgram on Monday, the lawmakers—led by Sens. Elizabeth Warren (D-MA) and John Fetterman (D-PA), along with Senate Majority Leader Chuck Schumer (D-NY) and other champions of marijuana reform—denounced the “devastating impact” and “out of step” policy of prohibition, arguing that cannabis should be fully removed from the Controlled Substances Act (CSA).

Doing so would present a “rare opportunity to shape the new cannabis industry from the ground up, designing a federal regulatory system untainted by the corporate capture that has influenced alcohol and tobacco regulations, and advancing federal cannabis reforms that acknowledge and repair the harms of cannabis criminalization.”

The U.S. Department of Health and Human Services (HHS) has recommended that DEA move marijuana from Schedule I to Schedule III of the CSA following a scientific review that concluded cannabis does have therapeutic applications and is less harmful than other controlled substances on lower schedules. DEA makes the final decision, however, and is not bound by the HHS recommendation.

“While rescheduling to Schedule III would mark a significant step forward, it would not resolve the worst harms of the current system,” the senators’ letter, which was first reported by NBC News, says. “Thus, the DEA should deschedule marijuana altogether.”

The lawmakers acknowledged that incremental rescheduling “would have some important policy benefits,” however, such as eliminating barriers to research and federal employment for medical cannabis patients, as well as allowing state-licensed marijuana businesses to take federal tax deductions that they’re currently barred from utilizing under the Internal Revenue Service (IRS) code known as 280E.

“However, rescheduling would do little to rectify the most severe harms of the current system,” they wrote. “Many of the CSA’s criminal penalties for marijuana will continue as long as marijuana remains in the CSA, because those penalties are based on the quantity of marijuana involved, not the drug’s schedule status. Thus, criminal penalties (including prison sentences, fines, and asset forfeiture) for recreational marijuana use, and medical use of marijuana products that lack federal approval, would still exist, disproportionately penalizing Black and Brown communities.”

“These harms could be remedied only through fully descheduling marijuana,” they said. “Once descheduled, marijuana can still be subject to public health regulations, drawing from lessons learned through the regulation of alcohol and tobacco.”

The senators also preemptively argued that DEA should not base its scheduling decision on an outmoded interpretation of international treaty obligations, stating that the United Nations (UN) has already rescheduled cannabis and permitted medical and recreational legalization in other member states such as Canada. DEA has previously claimed that global drug conventions require the U.S. to keep cannabis in Schedule I or II.

The senators’ letter concludes:

“The DEA has never kept a drug in Schedule I after HHS recommended removing it, and it must not do so now. It is imperative that the DEA remove marijuana from Schedule I as several members of Congress and state attorneys general have urged. The DEA should do so promptly; its past record of taking years to resolve rescheduling petitions should not be repeated here. Furthermore, the DEA and HHS should be fully transparent about the evidence relied upon in the course of their review processes. The Biden Administration has a window of opportunity to deschedule marijuana that has not existed in decades and should reach the right conclusion—consistent with the clear scientific and public health rationale for removing marijuana from Schedule I, and with the imperative of relieving the burden of current federal marijuana policy on ordinary people and small businesses.”

Other signatories on the letter include Sens. Cory Booker (D-NJ), Jeff Merkley (D-OR), Bernie Sanders (I-VT), Kirsten Gillibrand (D-NY), Ron Wyden (D-OR), John Hickenlooper (D-CO), Peter Welch (D-VT), Chris Van Hollen (D-MD) and Alex Padilla (D-CA).

Senators also included an addendum with six questions about DEA’s scheduling review process that they’re asking the agency to answer by February 12.

For example, they want DEA to provide an update on the status of its review and the timeline for removing marijuana from Schedule I. They also asked what type of evidence the agency is relying on to inform its decision, and whether it intends to request data from future clinical trials before it proposes a scheduling change.

Further, the senators are seeking information about what changes, “if at all,” there would be to criminal penalties for marijuana if it was moved to any of the other four CSA schedules.

As referenced in the letter, the Congressional Research Service (CRS) recently detailed the limitations of simple rescheduling—emphasizing that state cannabis markets would continue to run afoul of federal law, and existing criminal penalties for certain marijuana-related activity would remain in force.

“To what extent does DEA’s evaluation of marijuana’s scheduling acknowledge or address the harms of cannabis criminalization and related collateral consequences, and racial disparities associated with federal marijuana enforcement?” the senators also asked.

“We thank you for your attention to this matter, and we look forward to your prompt action,” they said.

Meanwhile, HHS Secretary Xavier Becerra said this month that his agency has “communicated” its “position” on marijuana rescheduling to DEA and has continued to offer additional information to assist with the final determination.

DEA has steadfastly maintained it has “final authority” over the matter and can make any scheduling determination that it sees fit.

“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” the agency said in a letter to lawmakers last month. “DEA is now conducting its review.”

The statement came in response to an earlier letter from 31 bipartisan lawmakers, led by Rep. Earl Blumenauer (D-OR), that urged the agency to consider the “merits” of legalization as it carried out its review.

DEA has faced pressure on both sides of the marijuana policy debate over recent months, with advocates pressing for a Schedule III decision, or complete descheduling, and prohibitionists urging the agency to keep cannabis in Schedule I.

Prior to HHS releasing a trove of documents concerning its cannabis recommendation, a coalition of 12 Democratic state attorneys general implored DEA to move forward with federal marijuana rescheduling, calling the policy change a “public safety imperative.”

In another letter last month, 29 former U.S. attorneys called on the Biden administration to leave cannabis in Schedule I.

Last month, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to Biden calling on the administration to reschedule marijuana by the end of last year.

Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.

Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.

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In October, Advocates and lawmakers who support cannabis reform marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive this month by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.

Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee in September, also filed legislation late last year to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.

A coalition of 14 Republican congressional lawmakers, meanwhile, has urged DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.

Meanwhile, a recent poll found that about one-third of marijuana consumers say they would go back to the illicit market if cannabis was rescheduled and only made legally available as a Food and Drug Administration- (FDA) approved prescription drug.

Another recent survey found that President Joe Biden stands to make significant political gains if marijuana is rescheduled under his administrative directive. Of course, Biden doesn’t directly control the final outcome.

The president has routinely touted his 2022 scheduling directive, as well as a mass pardon he granted for people who’ve committed federal marijuana possession offenses. He followed up on that action last month with a renewed and expanded pardon proclamation. The Justice Department has already begun issuing certifications for people who applied under the second round.

Read the senators’ letter to DEA on descheduling marijuana below: