In response to delays in the marijuana rescheduling process that began under the previous presidential administration, congressional researchers assert that lawmakers have the ability to enact rescheduling legislation more swiftly than the current administration. According to a brief published by the Congressional Research Service (CRS), the legislative branch can act with ‘greater speed and flexibility’ than the administrative process currently employed by the Biden administration and inherited from the Trump administration.
The Controlled Substances Act (CSA) outlines two primary mechanisms for scheduling substances: Congress can enact legislation to schedule a substance, or the Attorney General, in coordination with the Department of Health and Human Services (HHS), can move substances through an administrative process. This report updates a previous analysis from the CRS, highlighting instances where Congress has taken action on scheduling, including the legalization of hemp through the 2018 Farm Bill.
Historically, Congress has placed several substances in various schedules since the CSA was enacted in 1970. While the Drug Enforcement Administration (DEA) has made most subsequent scheduling changes via rulemaking, there are occasions where Congress has legislated specific scheduling decisions.
CRS points out that legislative scheduling can be significantly faster than administrative scheduling, which often requires extensive formal rulemaking that can take months or even years to complete. The DEA is mandated to evaluate each substance’s potential for abuse and accepted medical use before making scheduling decisions, making the process time-consuming and subject to judicial review.
For example, the HHS took 11 months to review cannabis and make an initial recommendation for rescheduling. Afterward, the DEA conducted its own review before the Justice Department proposed moving cannabis from Schedule I to Schedule III. However, the administrative hearing process has been marked by further delays.
In contrast, Congress could enact legislation to reschedule marijuana more quickly and with reduced risk of legal challenges. The CRS report clarifies that Congress is not bound by the CSA’s procedural requirements and can immediately schedule a substance regardless of whether it meets statutory criteria. Although legislation may still face court challenges, the scope of judicial review is generally narrower compared to regulatory decisions.
The report also emphasizes that legislative action could be crucial for permanently scheduling large classes of substances, such as certain fentanyl-related compounds, which are subject to stringent requirements under the CSA. The DEA has limited options for regulating controlled substances, as it must classify them within the existing schedules without the authority to create new ones or implement unapproved regulations.
Importantly, while the DEA must consider international treaty obligations in its scheduling decisions, these obligations do not restrict Congress from passing laws that may conflict with treaty requirements.
Recently, the Senate committee advanced the nomination of Terrance Cole as the new DEA administrator amidst ongoing discussions about marijuana rescheduling. Cole expressed his commitment to reviewing the rescheduling proposal, stating it would be one of his initial priorities. However, he has also raised concerns about the risks associated with cannabis use, linking it to higher suicide rates among youth.
The DEA has reported that proceedings regarding the rescheduling proposal remain on hold, with no timeline for future actions. This stagnation follows the tenure of acting administrator Derek Maltz, who has described cannabis as a ‘gateway drug’ and has since left the position.
As legislative discussions continue, the potential for Congress to expedite the rescheduling of cannabis remains a point of interest for advocates and industry stakeholders, especially as public support for reform grows.
English 
Spanish 
German 
Czech