The Rescheduling Hearing Proved the Rulebook Never Existed
On November 7, a press release landed on Yahoo Finance announcing that the record had closed in the DEA’s marijuana rescheduling hearing, DEA Docket No. 1362. Final reply briefs are in. Chief Administrative Law Judge Derek C. Julius now has to write a recommended decision for DEA Administrator Terrance Cole, and no deadline governs when he does it.
The headline question in that release was blunt: can the government meet its burden of proof? Under the Administrative Procedure Act, the party proposing a rule carries the burden. In this case the proponent is the DEA itself, which in August asked its own judge to “expeditiously recommend” moving marijuana to Schedule III. Read that twice. The agency that spent half a century keeping cannabis next to heroin now has to prove to its own in-house judge that it was wrong, and the opponents in the room are arguing the agency can’t prove anything because it never wrote down how it decides.
I want to be careful here, because you deserve the straight version. Nobody has ruled that the DEA failed its burden. That claim comes from MMJ International Holdings, a pharmaceutical company developing cannabinoid drugs through the FDA pipeline, and it paid to distribute that release. MMJ is also a petitioner in the D.C. Circuit challenging the April 2026 order that already moved state-licensed medical marijuana into Schedule III. So treat its framing as advocacy. The judge hasn’t spoken.
What MMJ dug out of the transcript, though, is worth your attention, because it confirms something I have believed for years. The scheduling system was built so cannabis could never get out.
Some history, because the timeline is the evidence.
Congress passed the Controlled Substances Act in 1970 and parked marijuana in Schedule I as a temporary placement while the Shafer Commission studied it. The commission recommended decriminalizing personal use. Nixon ignored it, and the placeholder became permanent.
In 1972, NORML petitioned to reschedule. The DEA and its predecessor stalled, refused to hold hearings, and lost in court repeatedly before finally convening them in the 1980s. In 1988, DEA’s own administrative law judge, Francis Young, reviewed the record and recommended Schedule II. He called marijuana one of the safest therapeutically active substances known to man. The DEA Administrator overruled him. The D.C. Circuit then upheld the DEA in 1994, in Alliance for Cannabis Therapeutics v. DEA, and with it a new five-part test for “currently accepted medical use” that the agency had published in 1992. NORML’s petition took 22 years to die.
Later petitions met the same wall. Jon Gettman filed in 1995 and lost in 2001. The Coalition for Rescheduling Cannabis filed in 2002, waited nine years for a denial, and lost on appeal in 2013. Two governors petitioned in 2011; the DEA said no in 2016. Each denial leaned on the same reasoning: marijuana doesn’t satisfy the five-part test.
Then in October 2022, President Biden asked HHS and the Attorney General to review marijuana’s scheduling. In August 2023, HHS recommended Schedule III. In April 2024, the Justice Department’s Office of Legal Counsel signed off. In May 2024, the DEA published a proposed rule. A hearing got scheduled for January 2025 and then collapsed in a fight over the DEA’s contacts with opponents. Biden left office without finishing.
President Trump signed Executive Order 14370 in December 2025, directing the Attorney General to finish the job. On April 22, 2026, Acting Attorney General Todd Blanche signed an order moving FDA-approved marijuana products and state-licensed medical marijuana into Schedule III, and he opened a fresh hearing on everything else. That hearing ran from June 29 to July 15, 2026, with about 2,500 pages of testimony. Only opponents of rescheduling got seats as participants alongside the DEA. NORML asked for one and didn’t get it.
So you had it right, mostly. Biden started the push and the popularity of cannabis kept it alive, but Biden didn’t get it over the line. Trump’s executive order forced the hand, and even then only for the medical side.
You asked whether the government changed the criteria because cannabis could never pass the old ones. It did, and a federal witness said so under oath.
The DEA’s five-part test asks whether a drug has known and reproducible chemistry, adequate safety studies, adequate and well-controlled studies proving efficacy, acceptance by qualified experts, and widely available scientific evidence. Look at the first item. A plant with hundreds of compounds that vary by strain, grow, and harvest will never have the single, reproducible chemical profile of a pill. Look at the third. Proving efficacy takes large controlled trials. Schedule I status choked off those trials for decades. For most of that time, the only legal research cannabis in the country came from one federally contracted farm at the University of Mississippi.
So the test required evidence the schedule made illegal to produce. The DEA could point to the missing evidence as proof the drug belonged in Schedule I, and Schedule I guaranteed the evidence stayed missing. I call that a lock with the key welded inside.
In 2023, HHS stopped using that test for marijuana and applied a two-part inquiry instead. Part one asks whether licensed health care providers have widespread current experience with the drug’s medical use under state programs. HHS found more than 30,000 providers authorized to recommend cannabis to over six million registered patients across 43 jurisdictions. Part two asks whether credible scientific support exists for at least one condition. OLC’s 2024 opinion called the old five-part test “impermissibly narrow.”
Now the testimony. Dr. Dominic Chiapperino, who directs the FDA’s Controlled Substance Staff and has run the five-part analysis in well over a hundred scheduling reviews, testified that the FDA began its marijuana evaluation in late 2022 under the traditional approach. The two-part test arrived by direction of the Assistant Secretary for Health in July 2023, about two months before the evaluation wrapped. Asked whether marijuana would have passed the five-part test, he agreed it would not have. A DEA pharmacologist, Dr. Luli Akinfiresoye, testified that she disagreed with HHS’s medical-use findings and, asked whether the two-part approach made scientific sense, answered “Scientifically, no.”
The opponents want you to hear that as a scandal: the government moved the goalposts. I hear a confession. Two federal scientists just admitted under oath that the old standard could not be met by a plant used medically by six million Americans under the supervision of 30,000 licensed clinicians. If your test returns “no accepted medical use” for that, your test measures FDA approval, not medical use. The statute never said FDA approval. OLC said as much.
In September, the Government Accountability Office published GAO-26-108623, a review of how the DEA and FDA make scheduling decisions. The findings are dry and devastating. The DEA has no policies or procedures telling its staff how to evaluate or schedule substances. The FDA has no policies or procedures telling its staff how to conduct the eight-factor evaluations or develop recommendations. The memorandum of understanding between the FDA and the National Institute on Drug Abuse is over 40 years old and names entities and procedures that no longer exist. Both departments agreed with all three of GAO’s recommendations.
Opponents rushed to get the report into the record, and Judge Julius admitted it on October 22 while refusing to reopen the hearing. Their argument goes like this: you can’t carry a burden of proof when you can’t show the method you used.
Fair enough. Now apply that argument to the last 54 years.
GAO wasn’t describing a problem created in 2023. It found no written procedures, period. The five-part test that blocked NORML, Gettman, the Coalition, and the governors came out of the same unwritten, undocumented process. If the absence of a rulebook means the government can’t prove marijuana belongs in Schedule III, it also means the government never proved marijuana belonged in Schedule I. The burden cuts both ways, or it cuts nothing.
GAO also found that DEA’s final decisions matched HHS recommendations in all 84 cases it reviewed from 2020 to 2025. The machinery works fine when the answer is “schedule it.” It only seizes up when the answer points toward less control.
Here is the part I find almost funny. The prohibitionists and the pharma-standard crowd went into this hearing to build an appellate record. What they built instead is the best documentary evidence we have that the federal drug scheduling system runs on improvisation.
Over the course of the hearing, federal officials testified that they picked whichever medical-use standard seemed likelier to reach a result, that no one at FDA designed either test, and that the agency never finished the traditional analysis. GAO then confirmed that neither agency had written rules to begin with. The judge himself questioned on the record whether the OLC opinion even binds his tribunal.
I don’t say this to defend the 2023 switch as clean. It wasn’t clean. Changing standards midstream, by direction from above, without a written procedure, invites exactly the attack it’s getting. A system with integrity would have had a written, public, scientifically defensible method decades ago, and cannabis would have walked out of Schedule I under it in the 1980s when Judge Young said so.
My point is the system never had that integrity to lose. Fifty-four years of petitions, lawsuits, and hearings never forced the government to write down how it decides. It took a sitting president, then a second sitting president, then an executive order, then an Acting Attorney General, to move one category of one plant one shelf down. When the process finally reached the stage where officials had to explain their method under oath, they didn’t have one to show you.
The Controlled Substances Act claims to rank drugs by abuse potential and medical value. Alcohol sits outside it entirely. Alcohol kills roughly 178,000 Americans a year according to the CDC, and you can buy it at a gas station. Tobacco, same story. Meanwhile psilocybin, which the FDA twice designated a breakthrough therapy, sits in Schedule I. Cannabis, used by tens of millions of adults in 24 legal states, stays in Schedule I for everyone outside a medical card.
You can defend that arrangement on cultural grounds, on tradition, on tax revenue. You cannot defend it on the science the Act claims to follow. When the government’s own auditors say it never wrote down the science part, the ranking turns into a costume.
So I see two honest options.
The first: rebuild scheduling from the ground up. Write the rules down. Publish them. Separate the question of harm from the question of medical value, because a drug can be both risky and useful, and most real medicine is. Put HHS in charge of the science instead of a law enforcement agency. Then run every substance through the same written process, alcohol and tobacco included if we want to be consistent, and accept wherever the evidence lands. Representative Cohen’s bill introduced last month sketches exactly this, and it deserves a second life in the next Congress.
The second: admit that drug policy reflects culture and politics, and make it through legislatures where voters can see it. Deschedule cannabis by statute. Set adult-use rules the way we set alcohol rules. Stop pretending a DEA hearing room produces scientific truth.
What we can’t keep doing is the third option, the current one, where an agency without written procedures holds a hearing with only one side invited, and everyone involved pretends the outcome reflects a neutral measurement of risk.
Judge Julius will recommend something. The Administrator will accept it, reject it, or rewrite it. Somebody will appeal to the D.C. Circuit, probably several somebodies. Adult-use cannabis stays in Schedule I through all of it.
Watch that process, but don’t mistake it for the real fight. The real finding from Docket 1362 arrived before any ruling: under oath and on the federal record, the people who run this system admitted they never had a method. The war on drugs ran for half a century on a placeholder, a test nobody could pass, and procedures nobody wrote down.
You don’t fix that with a better hearing. You fix it by replacing the system.
- Yahoo Finance / ACCESS Newswire (MMJ International Holdings press release), “DEA Marijuana Rescheduling Hearing Closes,” Nov. 7, 2026: https://finance.yahoo.com/healthcare/articles/dea-marijuana-rescheduling-hearing-closes-123000295.html
- MMJ International Holdings press release on hearing testimony (via Middletown Life), Oct. 2026: https://lifestyle.middletownlifemagazine.com/story/783406/dea-burden-of-proof-missing-rulebooks-and-expert-witness-admissions-threaten-marijuana-rescheduling/
- U.S. GAO, “Drug Scheduling: While DEA Decisions Have Aligned with Recent HHS Recommendations, Both Need Comprehensive Policies,” GAO-26-108623, Sept. 23, 2026: https://www.gao.gov/products/gao-26-108623
- DEA, Order Staying Case, Docket No. 1362, Sept. 29, 2026: https://www.dea.gov/sites/default/files/2026-09/Proposed%20Marijuana%20Rescheduling_Stay%20and%20Briefing%20Order.pdf
- NORML, “DEA Judge Overseeing Marijuana Rescheduling Permits Parties To File Additional Briefs, Denies Request To Reopen Hearing,” Oct. 22, 2026: https://norml.org/news/2026/10/22/dea-judge-overseeing-marijuana-rescheduling-permits-parties-to-file-additional-briefs-denies-request-to-reopen-hearing
- Cannabis Regulations AI, “DEA Just Told Its Own Judge to Move Marijuana to Schedule III”: https://www.cannabisregulations.ai/cannabis-and-hemp-regulations-compliance-ai-blog/dea-schedule-iii-post-hearing-brief-2026
- National Law Review, “Inside the DEA Marijuana Rescheduling Hearing: Five Fights That Will Decide the Case”: https://natlawreview.com/article/inside-dea-marijuana-rescheduling-hearing-five-fights-will-decide-case
- DOJ Office of Legal Counsel, “Questions Related to the Potential Rescheduling of Marijuana,” Apr. 11, 2024: https://www.justice.gov/olc/media/1352141/dl
- Mondaq, “Cannabis Rescheduling Arrives With Limits”: https://webiis08.mondaq.com/unitedstates/cannabis/1789782/cannabis-rescheduling-arrives-with-limits-what-the-dojs-final-order-does-and-doesnt-do
- Washington Examiner, “Todd Blanche orders federal reclassification of medical marijuana as less dangerous,” Apr. 23, 2026: https://www.washingtonexaminer.com/?p=4540202
- Harris Sliwoski, “Marijuana Rescheduling Delayed, Again”: https://harris-sliwoski.com/cannalawblog/dea-marijuana-rescheduling-delayed/
- Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994); In the Matter of Marijuana Rescheduling Petition, Opinion of ALJ Francis L. Young, DEA Docket No. 86-22 (Sept. 6, 1988)
- CDC, “Facts About U.S. Deaths from Excessive Alcohol Use”: https://www.cdc.gov/alcohol/facts-stats/index.html
WHY THE PEOPLE VOTED WEED AT THE MIDTERMS, READ ON…
