After fifty-five years, the federal government is on the verge of moving marijuana out of Schedule I, the most restrictive category in the federal Controlled Substances Act (CSA). In May 2024, then-Attorney General Merrick Garland issued a notice of proposed rulemaking to move marijuana to Schedule III—a change now making its way through the administrative process.
Underlying the proposal is a significant divide within the federal government over how to interpret the CSA’s scheduling provisions. Under the CSA, Schedule I substances are those with a “high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use.” But the CSA does not define these terms, and the Drug Enforcement Administration (DEA) has long interpreted them strictly. In the lead-up to the Attorney General’s rescheduling notice, the Department of Health and Human Services (HHS)—tasked by the CSA with conducting a scientific and medical evaluation in scheduling proceedings—abandoned the DEA’s tests for assessing medical use and abuse potential. HHS’s analysis, under this new and more lenient approach, formed the basis for the rescheduling proposal.
This Article examines the proposed transfer of marijuana from Schedule I to Schedule III of the CSA. In it, I argue that the split between the DEA and HHS—combined with the Supreme Court’s 2024 reversal of Chevron deference—sets the stage for a process likely to transform the CSA by requiring the DEA to abandon its longstanding approach to interpreting and applying the scheduling criteria. In support of this analysis, the Article unearths two pieces of evidence from the history of the CSA and the Food, Drug, and Cosmetic Act (FDCA) that have gone overlooked by both courts and commentators, but that I argue significantly undermine the DEA’s definition of “currently accepted medical use.” Finally, the Article explains why the factual findings in HHS’s recommendation to transfer marijuana to Schedule III could give marijuana reform advocates ammunition to press for an even lower CSA classification.
