The GAO Just Confirmed Nobody Wrote the Rulebook
Last month the Government Accountability Office published a 31-page report with a title so dull it could cure insomnia: “Drug Scheduling: While DEA Decisions Have Aligned with Recent HHS Recommendations, Both Need Comprehensive Policies.” I read it the way other people read thrillers. Buried in the bureaucratese is the answer to a question I’ve been asking for years: what, exactly, is the procedure that decides whether a plant goes in the same legal box as heroin?
The answer, according to Congress’s own watchdog, is that there isn’t a complete written one.
What the GAO actually found
Let me be precise, because this is a story that doesn’t need exaggeration. GAO reviewed DEA’s scheduling actions on 208 substances between 2020 and 2025. Ninety-five required a medical and scientific evaluation from the Department of Health and Human Services. Eighty-four had final rules by the end of 2025, and every one of them matched HHS’s recommendation.
Then the findings. DEA has no comprehensive written policies describing roles, responsibilities and procedures across its scheduling pathways: administrative, NDA-triggered, temporary, and treaty-driven. FDA, which does the eight-factor analysis that underpins every HHS recommendation, has no written procedures telling its staff how to conduct it. It also has no written criteria for what counts as “potential for abuse”, including how a substance should be compared with other substances. And the memorandum of understanding between FDA and the National Institute on Drug Abuse is more than 40 years old and references offices that no longer exist.
GAO made three recommendations: DEA writes its policies, FDA writes its procedures, and FDA and NIH update the memorandum. DOJ, DEA, HHS, FDA and NIH all concurred. Nobody argued. Nobody argued because there’s nothing to argue with. The cupboard is bare.
What the GAO said, and what I’m saying
Let me draw the line clearly. The GAO’s findings are the ones above: no complete written framework at DEA, no written procedures or criteria at FDA, a 40-year-old memorandum at the center. The GAO did not say marijuana belongs in any particular schedule, and it did not call the system a farce. That word is mine. It’s my reading of what the findings imply, and I’ll defend it below.
One fact from the report deserves its own mention: DEA followed HHS’s recommendation in all 84 final rules GAO reviewed. I don’t read that as reassurance. A consistent outcome produced by an undocumented process isn’t rigor. It’s tradition.
The framework that moved
Cannabis is where the missing paperwork stops being an audit footnote. For “currently accepted medical use”, the legal hinge of Schedule I, DEA long relied on a five-part test. In 2023, HHS used a two-part framework instead, one that allowed a finding of accepted medical use without FDA approval and without satisfying DEA’s five points. A 2024 Justice Department Office of Legal Counsel opinion said HHS’s approach was legally sufficient and that DEA must give HHS significant deference.
Read that again. Two agencies, one statute, two different tests for the same phrase, and a third agency telling them which one wins. That is not a system with settled procedures. That is a system improvising in public.
Red tape is the system working as designed
I never thought this would be straightforward, and neither should you. So here’s my position: the stall isn’t a malfunction, it’s the expected output. I’m not claiming a conspiracy, and the GAO doesn’t either. I’m saying that an agency with no complete procedure has no way to finish anything quickly, and that has always been convenient for everyone who preferred the status quo.
The timeline fits the pattern. HHS recommended Schedule III in August 2023. DEA issued its proposed rule in May 2024. The hearing set for January 2025 never happened. In December 2025 an executive order told the government to finish the job. In April 2026 DEA moved FDA-approved marijuana products and state-licensed medical marijuana to Schedule III and noticed a new hearing on broader rescheduling. That hearing ran for 11 days, June 29 to July 15, under Docket 26-96. On September 28, a group including the National Drug and Alcohol Screening Association, DUID Victim Voices and Dr. Kenneth Finn moved to put the GAO report into the record and stay the case. On September 29, Chief Administrative Law Judge Derek Julius granted the stay. Government responses are due October 13, and there’s no deadline on his eventual recommendation.
Notice who used the GAO report: opponents of rescheduling. They’re arguing that a process with no written procedures can’t support a decision this big. On that narrow point, they’re right. The procedures don’t exist. The stay itself doesn’t reject rescheduling, as a Harris Sliwoski analysis noted, but it shows how easily a process can be frozen by pointing to its own missing paperwork. That’s red tape doing exactly what red tape does.
The catch-22 we already lived through
If you want to see what a process built to stall looks like in practice, look at NORML’s petition. NORML filed to reschedule marijuana on May 18, 1972. The director of the federal drug bureau at the time, John Ingersoll, refused to even accept it, and a federal appeals court had to order the government to process it (NORML v. Ingersoll, 1974). The petition then went through round after round of denial and remand. A hearing finally happened in 1986. In 1988, DEA’s own Administrative Law Judge, Francis Young, concluded that marijuana “in its natural form, is one of the safest therapeutically active substances known to man” and recommended Schedule II. The DEA Administrator, John Lawn, rejected the recommendation. The D.C. Circuit let that stand in 1994.
Further petitions were denied in 2001, 2011 and 2016. The loop was elegant: no scheduling change without evidence of medical use, no evidence of medical use without research, no research without access to a non-Schedule I supply, and no supply because it’s Schedule I. A rulebook that’s coherent enough to trap petitioners but too incomplete to document? That is exactly what an unwritten process looks like from the outside.
And note the present irony. NORML and other advocacy groups were denied a seat at the 2026 hearing. The 1972 petitioner who spent half a century forcing this issue was not at the table when it finally got a hearing.
The categories nobody can defend
Which brings me to the question that keeps me up. If FDA has no written criteria for “potential for abuse” and no written method for comparing one substance against another, then how do we know LSD is as dangerous as heroin? How do we know cannabis and psilocybin belong in the same box as heroin at all?
I can’t prove that no one ever tested them. The record I have only shows what the GAO says: today there’s no complete written framework, and the 40-year-old FDA-NIDA agreement is stale. But the initial placements came from the 1970 Controlled Substances Act, passed in a hurry, and the Shafer Commission that same law created recommended in 1972 against criminalizing personal marijuana use. If the people who placed these substances had a documented, repeatable method, we could read it. The GAO’s finding makes me doubt there ever was one. The schedules put cannabis and psilocybin beside heroin, and LSD and the classic psychedelics in a category that has no accepted use, while cocaine and methamphetamine sit in Schedule II because they have approved medical uses. That isn’t a science-driven map. It’s a legacy map.
So yes, I’m calling it a farce. Not because the GAO did, but because a system that can’t show its work has no business deciding who goes to prison for a plant.
What to watch
On October 13 the government files its response on the stay. After that, Judge Julius decides whether the GAO report enters the record, and whether more briefing follows. If it does, the rescheduling case may now turn on whether the government can retroactively produce procedures it never wrote.
That’s the real test. Not whether cannabis is safe, which I think the evidence has answered repeatedly, but whether an agency with no written method can defend the method it used. I’ll be watching. Wear something comfortable; it’s going to be a long wait.
Sources
- U.S. Government Accountability Office, “Drug Scheduling: While DEA Decisions Have Aligned with Recent HHS Recommendations, Both Need Comprehensive Policies,” GAO-26-108623, Sept. 23, 2026. gao.gov
- Harris Sliwoski, summary of the ALJ stay and the DEA/HHS frameworks, Oct. 2026.
- Drug War Chronicle and MMJ International press materials on the GAO report and the HHS two-part framework.
- Yahoo Finance, “Marijuana rescheduling halted: GAO report,” Oct. 2026.
- NORML v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974); In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22, Opinion and Recommended Ruling of ALJ Francis L. Young, Sept. 6, 1988.
- National Commission on Marihuana and Drug Abuse (Shafer Commission), “Marihuana: A Signal of Misunderstanding,” 1972.
- Executive Order 14370 (Dec. 2025); DEA Docket No. 1362 / 26-96 hearing records.
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