Attorney General Merrick Garland never delegated his authority to the Drug Enforcement Administration (DEA) to issue a final rule on the current cannabis rescheduling proposal. However, an administrative law judge (ALJ) didn’t necessarily see eye-to-eye with a pair of attorneys who tried to bring this to his attention.
John J. Mulrooney, the DEA’s chief ALJ overseeing the rescheduling hearing, indicated during preliminary proceedings on Dec. 2 that, upon the conclusion of the hearing process, he intends to file his recommended decision with the DEA administrator—whoever that be following the conclusion of testimonies in March 2025—not the attorney general.
The purpose of the hearing is for the DEA’s designated participants to debate the merits of the Department of Justice’s (DOJ) proposed rule to move cannabis from Schedule I to Schedule III under the Controlled Substances Act (CSA).
“All of the attorney general’s authority was delegated to the DEA administrator by regulation, and it didn’t hold any back,” Mulrooney told attorney Matthew Zorn during Monday’s proceedings.
Zorn, a partner at Yetter Coleman LLP, is representing three designated participants in favor of rescheduling cannabis: the Connecticut Office of the Cannabis Ombudsman, Ellen Brown, and The Doc App Inc. Zorn had just finished expressing his view to Mulrooney about what authorities Garland did and did not delegate to the DEA via a 92-page notice of proposed rulemaking (NPRM) that he signed on May 16.
“The NPRM itself—the attorney general order—cabins and prescribes the exact authority that the administrator was to exercise in this case, and it was, ‘Determine if there was a hearing; notice that hearing,’” Zorn told Mulrooney. “And, in between, there’s a step that wasn’t actually delegated to the administrator.”
Zorn was hinting about the authority (or lack thereof) to issue a final rule.
A Possible Rescheduling Delay
While the DEA administrator, currently Anne Milgram, has a “general delegation” as it relates to the CSA, the specific delegation in the NPRM supersedes this general delegation, Zorn said.
“The reason that’s also important is DOJ is the proponent of the rule in the attorney general order, and I believe that your honor’s recommendation should go to the attorney general and not to the DEA administrator,” he said. “I think that’s a legal issue that has import that bears on the proceedings. It’s not simply a tiny issue.”
Earlier in the exchange between Zorn and Mulrooney, the judge said that after he makes his recommendation to the DEA administrator, that person is going to issue a final rule based on consideration of “several concerns,” including public safety.
However, Zorn said his firm may seek a stay in the hearing proceeding process, with one possible argument being that the DEA administrator doesn’t have the authority to issue a final rule under the NPRM.
Shane Pennington, a partner at Porter Wright Morris & Arthur LLP, also argued this position in a legal motion filed on Nov. 18 in which he, on behalf of the designated participant Village Farms International, attempted to remove the DEA from the hearing process.
That motion was filed jointly with Abdul Kallon, partner, and Andrew J. Kline, senior counsel, at Perkins Coie LLP. Kallon and Kline represent designated participant Hemp for Victory, a nonprofit veterans group.
DEA’s Perceived Authority
Based on five decades of precedent, DEA officials have claimed on multiple occasions during the past 12 months that they have the “final authority” to determine the proper schedule for cannabis.
There are two key instances of top DEA officials making this claim for the current cannabis rescheduling process that now awaits the ALJ hearing testimonies that are scheduled to begin next month:
- In December 2023, Michael Miller, acting chief of the DEA’s Office of Congressional Affairs, asserted in a letter to Rep. Earl Blumenauer, D-Ore., that the agency “has the final authority to schedule, reschedule or deschedule a drug under the Controlled Substances Act.”
- During a May 2024 U.S. House subcommittee hearing, DEA Administrator Anne Milgram confirmed the DEA’s “final authority” in this regard: “Since DEA is ultimately the decider of scheduling and rescheduling, and the DEA administrator is in that role, it would be inappropriate for me to make comments about this process or parts of that process,” she told Rep. Andrew Clyde, R-Ga.
But those assertions of complete power—versus delegated power—may not be entirely accurate. Even the DEA’s own resource guide refers to the administrator’s powers as “by authority of the attorney general.”
The subcommittee hearing as mentioned above took place on May 7, nine days before Garland signed that 92-page NPRM to reschedule cannabis under the CSA—a document historically signed by someone in Milgram’s position at the DEA.
While Milgram provided a “yes” confirmation to Clyde when he asked, “So, you’re the final; you’re it?” she refused to answer Clyde when he asked, “Is the decision to reschedule marijuana being initiated or encouraged predominantly by the White House Office of Management and Budget, the attorney general’s office or the DEA?
As we now know—as evidenced by Garland’s signature—it was the attorney general’s office pushing for the proposed rule to move cannabis to Schedule III.
This, in part, is why cannabis rescheduling advocates have recently challenged the DEA’s position as the “proponent” of the proposed rescheduling rule for the upcoming ALJ testimonies: The DEA has refused to endorse the proposed rule yet doesn’t want to relinquish its “final authority” status to oversee it.
And although Mulrooney said, “I don’t want to hear it,” during Monday’s preliminary proceedings when pro-rescheduling attorneys continued to question the DEA’s position as the “proponent” of the NPRM, the judge failed to put the issue to rest when he had the chance. Mulrooney let the DEA’s lead counsel—Deputy Section Chief James J. Schwartz—off the hook when Schwartz sidestepped a question about the government’s support for the proposed rule.
RELATED: DEA Counsel Dodges Question on Support for Cannabis Rescheduling
Unusual Circumstances
Despite the hearing scheduled to resume Jan. 21 with the DEA acting as the “proponent,” the agency’s final authority to schedule, reschedule or deschedule a drug under the CSA isn’t necessarily automatic. The authority, rather, rests with the U.S. attorney general, who has traditionally delegated it to the DEA since the agency’s establishment in 1973.
In a Nov. 25 response to cannabis rescheduling advocates’ call for the DOJ to replace the DEA as the “proponent” of the proposed rule, Schwartz wrote, “The movants fail to identify any precedent that would support removing an agency from its own rulemaking process.”
But nothing about the current rulemaking process is ordinary. In federal court, if it comes to that, cannabis rescheduling advocates could argue that the DEA broke precedent when Milgram elected not to sign the NPRM that was later published in the Federal Register.
If one looks closely, the NPRM included the following docket number: “DEA-1362; A.G. Order No. 5931-2024.”
The inclusion of this attorney general order number following the DEA docket number is extremely unusual and strays from the ordinary course: Attorneys who study rulemaking processes for a living are not familiar with such an instance in the 50-plus-year history of the agency.
Further down in the 92-page document, under the subhead “Proposal to Reschedule Marijuana,” it states that the CSA “vests” the attorney general with the authority to “schedule, reschedule or decontrol drugs” (21 U.S.C. 811(a)), and that the attorney general has traditionally delegated that authority to the DEA administrator (see 28 CFR 0.100) but also retains the authority to schedule drugs under the CSA in the “first instance” (see 28 U.S.C. 509, 510).
In other words, the U.S. attorney general can giveth and taketh away. In this case, he took away the DEA’s authority to offer the proposed rule to reschedule cannabis and decided to do it himself—a DOJ first.
Garland’s signature on the NPRM came after the U.S. Health and Human Services Department conducted a scientific and medical evaluation for cannabis—in conjunction with the Food and Drug Administration—and recommended relisting the plant to a Schedule III classification.
“In light of that recommendation, the Attorney General is exercising the Attorney General’s authority under 21 U.S.C. 811(a) to initiate a rulemaking that proposes the placement of marijuana in schedule III,” Garland wrote in the NPRM.
Where Does The Power Lie?
The question is, did he also take away the DEA’s authority to offer a final rule in the Federal Register following the ALJ hearing? The argument can be made that he did, which Pennington and company offered in the Nov. 18 motion.
In the NPRM, Garland wrote that the DOJ—not the DEA—will “revise this section at the final rule stage if warranted after considerations of any comments received,” that “outside participants may submit additional scientific and medical evidence during the rulemaking that DOJ would need to consider,” and that the “DOJ must accord ‘significant deference’ to HHS’s scientific and medical determinations throughout the rulemaking process.”
Not once does Garland’s proposed rule say that he’ll be delegating the attorney general’s authority (under 21 U.S.C. 811(a)) to issue the final rule but rather that the department he heads, the DOJ, retains the authority to do so (28 U.S.C. 509, 510).
So, the question is, between the proposed rule and the final rule, did he reserve any authority for DEA?
As Zorn alluded to during Monday’s proceedings, Garland wrote in the NPRM that the DEA administrator can merely consider the applications and requests for a hearing and then designate an ALJ to preside over the hearing should she decide to grant the hearing. He also directed the DEA to publish a notice for the hearing in the Federal Register.
Garland did not say the DEA could be the proponent of the proposed rule nor issue a final rule.
There’s a Latin principle used by legal professionals, “exclusio unius est exclusio alterius,” which means when a law or contract explicitly mentions certain items, it intends to exclude all others that were not explicitly mentioned.
In other words, when Garland provided certain authorities to the DEA in the NPRM, by default, he excluded other authorities that he did not mention.
The Post-Inauguration Picture
Still, it remains unclear where that leaves the final rule upon a transition in power in the White House.
With the ALJ hearing process scheduled to extend beyond Joe Biden’s presidency, President-elect Donald Trump’s presumable nomination for attorney general, Pam Bondi, will likely be the one taking over the driver’s seat for the current proposal. As Florida’s former attorney general, Bondi has a history of falling in line with her superiors, specifically former Gov. Rick Scott.
That said, regardless of previously delegated powers, the cannabis rescheduling buck arguably stops with the attorney general—a presidential cabinet member—not the DEA.
However, since ALJ Mulrooney said he plans to issue his cannabis rescheduling recommendation to Trump’s future DEA administrator, Zorn said he is considering moving for a stay in the hearing process.
Mulrooney warned Zorn, and other cannabis rescheduling advocates, what that could mean should a federal court—whether a district or an appeals court—get involved.
“If I get a stay [challenging the structure of the hearing] … remember that you’re going to be delaying these proceedings till God only knows when,” the judge said Monday. “Understand that when you go back to your seat after you get your stay, marijuana just stops.”
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