According to the Playbook: Why Congress Is the Only Override Button
On Friday, October 9, the Justice Department and the people suing to block marijuana rescheduling filed a joint proposal with the D.C. Circuit. If the court agrees, briefing wraps by mid-February 2027, with final briefs on February 19, and oral argument lands before the summer recess. Eleven opponents, in three consolidated lawsuits, have agreed to file a single opening brief on November 24 and a single reply in February.
I called this. Not the date, but the shape. And before I take a victory lap, I owe you a few corrections, because the facts are more interesting than my predictions.
What I said, and what the record shows
Last year I argued that opponents of rescheduling had a litigation plan ready to stall Schedule III indefinitely. I also wrote about a SAM meeting where its people discussed pressing the Biden administration to enforce Schedule III requirements against dispensaries. Some of the officials involved denied any coordination, and I haven’t seen a document proving that anyone handed anyone a binder. I’m not going to claim collusion I can’t show.
What I can show is that the binder doesn’t need to be secret, because it’s the Administrative Procedure Act. And that playbook is playing out in public.
Two corrections to the record. First, the rescheduling that’s now in court wasn’t finished under Biden. Biden’s administration started the process: HHS recommended Schedule III and DOJ proposed a rule in 2024. The action in litigation now came after President Trump signed an executive order directing officials to complete the process. In April, Attorney General Todd Blanche issued an order immediately moving state-licensed medical cannabis and FDA-approved marijuana products to Schedule III, and a separate order set up an administrative hearing on broader rescheduling.
Second, the “playbook” has not stalled everything yet. The court denied a stay request from the drug-testing association NDASA and the cannabis-focused pharma company MMJ International in September. Meanwhile the Justice Department is defending rescheduling and told the court the challengers have pocketbook interests in keeping marijuana in Schedule I. The DEA’s own brief says marijuana no longer fits Schedule I because it has an accepted medical use, citing more than 30,000 practitioners treating over six million patients in 43 jurisdictions.
So no, I can’t call this collusion. I’d call it something a little worse for the system: an arrangement where entrenched money doesn’t need a conspiracy, because the process itself rewards delay.
The playbook, move by move
Here’s what the opposition has actually run.
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Sue early, sue together. Three suits, consolidated. One led by SAM and NDASA, whose complaint was signed by lawyers at Torridon Law, the firm where former Attorney General William Barr is a partner. Another from a coalition of activists, doctors and MMJ International. A third from the attorneys general of Indiana, Nebraska and Louisiana, though Louisiana later withdrew.
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Ask for a stay. Denied, but the government had to respond.
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Fight for standing. The joint filing flags multiple standing issues. The government’s counter is that the challengers aren’t the intended beneficiaries of the Controlled Substances Act.
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Throw a wrench in the hearing. An administrative law judge paused the broader rescheduling hearing after opponents asked to add a federal GAO report to the record. The report found that DEA has no written policies for how staff evaluate or schedule substances, and FDA has none for developing scheduling recommendations either.
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Go around the courts. The House Appropriations Committee voted to block federal officials from carrying out rescheduling. Bipartisan lawmakers told Marijuana Moment they don’t expect it to succeed.
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Open a second front. SAM, MMJ and other plaintiffs sued to block a Trump administration program covering certain hemp products through Medicare. A judge dismissed it in May, and the plaintiffs are appealing.
Notice move four. The GAO finding is a legitimate critique of a sloppy process, and it’s also a delay tool. Both things are true. That’s how a system captured by incentives works: nobody has to lie, because honest procedural objections do the job.
Why rescheduling was never the finish line
Even a clean win in court would not legalize cannabis. Schedule III keeps it a controlled substance, with the prescribing, registration and FDA-approval structure that comes with it. As I’ve said for years, it’s a sweet spot for pharmaceutical companies and does little for the average user. NDASA and MMJ argued to the court that rescheduling cuts taxes on cannabis companies and will “stimulate the industry.” Which means the fight that exhausts everyone is over a half-measure.
And every executive-branch route has the same weakness. Anything an agency does can be challenged, through the same slow, expensive, uncertain court process. After the Supreme Court dismantled Chevron deference in 2024, judges owe agencies less deference on how to read the Controlled Substances Act, which is why I warned back then that challenges would get harder to beat. That prediction hasn’t been fully tested. The structure, though, is clear: if you want something courts can’t unwind, you need a statute.
Congress: the override button, and the threat
Here’s where I have to be honest about the thing I’m advocating. Congress is the only place that can end this, but it’s also where the hemp ban was born (inserted by McConnell into a must-pass bill) and where a committee just voted to block rescheduling. The Marijuana Policy Project’s executive director has said further federal moves on cannabis look unlikely under this Congress. So “go to Congress” is not a magic spell. It’s a fight against the same institution that built the problem.
But there are real openings, and they have nothing to do with how anyone feels about weed.
The hemp deadline is a live legislative vehicle. December 11th is a hard date, and bills from Reps. Van Duyne and Landsman, Comer and Barr are already circulating. The White House has repeatedly urged Congress to fix the hemp definition, at least for CBD. Alcohol retailers and the restaurant lobby are lining up. It’s the only cannabis-adjacent fight with a clock on it.
Republicans are saying the quiet part out loud. Rep. Brian Mast, a co-chair of the Congressional Cannabis Caucus, told Marijuana Moment he wants an across-the-board look at the scheduling of cannabis, hemp, psilocybin, tranquilizers, “of everything.”
The midterms are three weeks away. Election Day is November 3. Candidates are about to be more reachable than at any other time in two years, and the lame-duck session that follows is when the hemp deadline will be fought out. The anti-hemp side knows it: CADCA is already telling its supporters to press candidates on hemp THC.
My unsolicited strategic advice, which you may ignore: sequence it. Go for the hemp fix first. It is bipartisan, time-boxed, partly backed by the White House and supported by a strange coalition of industries. A regulatory framework for all cannabinoids built on that vehicle would put the infrastructure of age limits, testing and taxation in place. Full descheduling is the destination, but it’s a bigger lift than a December deadline can carry.
The Controlled Substances Act is the real scam
Since I’m here: look at the criteria. Under the statute, Schedule I requires a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety under medical supervision. Heroin is Schedule I. So is psilocybin. Methamphetamine, cocaine and fentanyl are Schedule II. Legally speaking, the government has filed psilocybin on the shelf marked “more dangerous than meth.” You can argue a schedule isn’t a danger ranking, and you’d be right, but then explain why the Department of Veterans Affairs is launching a psilocybin study for veterans if the drug has no accepted medical use.
The GAO told us the agency that decides all this has no written playbook for how to evaluate drugs. That’s the real scandal, and no conspiracy theory is required. Skip “corruption at the atomic foundation of the country.” I prefer a word I can defend in court: incentives.
How we all pull the same direction
You asked for a short list on getting everyone aligned through individual action. Here it is.
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Use one sentence. “Regulate hemp THC with age limits and testing instead of banning it, and remove cannabis from the Controlled Substances Act.” Everyone says it the same way. Staffers count repetition.
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Contact three offices before December 11. Your two senators and your representative. Ask for the staffer who handles hemp or cannabis by name, then follow up in writing.
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Ask every candidate on the record before November 3. Town halls, forums, comment sections. Two questions: do you support replacing the hemp ban with regulation, and do you support a review of the Controlled Substances Act? Write down the answers and share them.
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Recruit people who aren’t stoners. Liquor store owners, restaurant operators, farmers, veterans, convenience store clerks, retired cops. The coalition behind hemp regulation is already unusually weird, and that’s the strength.
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Keep your own house clean. No sales to minors, real labels, real lab tests. The opposition’s best ammunition is bad actors, and the industry controls whether it gets any.
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Back whoever does the lobbying. Fund and show up for the organizations that actually staff these fights, and send your local business story, with numbers, to your representatives.
You in? I’m in. With one amendment: sequence it, win the thing with a deadline first, and build outward from there.
DECEMBER 11TH IS A BIG DATE, READ ON…
