The Senate has given initial approval for the chamber to take up the confirmation of President Donald Trump’s pick for head of the Drug Enforcement Administration (DEA)—a choice that will likely determine the fate of marijuana rescheduling.
Terrance Cole was selected to serve as administrator of DEA, but the agency during Trump’s second term has so far been run by interim leaders. On Monday, the Senate approved a motion to invoke cloture to advance the nominee in a 44-43 vote. A final vote on confirmation is expected on Tuesday morning.
Notably, while Cole has said that examining the rescheduling proposal would be “one of my first priorities” if he’s confirmed for the role, he has refused to say what he wants the result to be and has in the past made comments expressing concerns about the health effects of cannabis.
In May, a Senate committee advanced the nomination of Cole to become DEA administrator amid the ongoing review of the marijuana rescheduling proposal that he has so far refused to commit to enacting.
Cole—who has previously voiced concerns about the dangers of marijuana and linked its use to higher suicide risk among youth—said in response to senators’ written questions that he would “give the matter careful consideration after consulting with appropriate personnel within the Drug Enforcement Administration, familiarizing myself with the current status of the regulatory process, and reviewing all relevant information.”
Meanwhile, earlier this month, DEA again notified an agency judge that the marijuana rescheduling process remains stalled under the Trump administration.
It’s been six months since DEA Administrative Law Judge (ALJ) John Mulrooney temporarily paused hearings on a proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA) that was initiated under the Biden administration. And in a joint report to the judge submitted on Monday, DEA attorneys and rescheduling proponents said they’re still at an impasse.
For the time being, any action on the proposed rule to reschedule marijuana is evidently contingent on DEA Acting Administrator Robert Murphy. More likely, according to some, is that it will not move forward until a permanent DEA administration is confirmed.
Murphy’s appointment as acting administrator wasn’t widely publicized, but he’s replaced Derek Maltz—who subscribes to the “gateway drug” theory for marijuana—in the role.
DEA Administrative Law Judge (ALJ) John Mulrooney initially agreed to delay the rescheduling proceedings after several pro-reform parties requested a leave to file an interlocutory appeal amid allegations that certain DEA officials conspired with anti-rescheduling witnesses who were selected for the hearing.
Originally, hearings on the proposed rescheduling rule were set to commence on January 21, but those were cancelled when Mulrooney granted the appeal motion.
The appeal came after the judge denied a motion that sought DEA’s removal from the rescheduling proceedings altogether, arguing that it is improperly designated as the chief “proponent” of the proposed rule given the allegations of ex parte communications with anti-rescheduling witnesses that “resulted in an irrevocable taint” to the process.
Meanwhile, the Justice Department told a federal court in January that it should pause a lawsuit challenging DEA’s marijuana rescheduling process after Mulrooney canceled the hearings.
Also in January, Mulrooney condemned DEA over its “unprecedented and astonishing” defiance of a key directive related to evidence it is seeking to use in the marijuana rescheduling proposal.
At issue was DEA’s insistence on digitally submitting tens of thousands of public comments it received in response to the proposed rule to move cannabis to Schedule III.
Mulrooney hasn’t been shy about calling out DEA over various procedural missteps throughout this rescheduling process.
For example, in December he criticized the agency for making a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in hearings—but he allowed the agency to fix the error and ultimately granted the request.
Relatedly, a federal judge also dismissed a lawsuit seeking to compel DEA to turn over its communications with the anti-cannabis organization.
Mulrooney had separately denied a cannabis research company’s request to allow it to add a young medical marijuana patient and advocate as a witness in the upcoming rescheduling hearing.
Also, one of the nation’s leading marijuana industry associations asked the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.
Further, a coalition of health professionals that advocates for cannabis reform recently asked that the DEA judge halt future marijuana rescheduling hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.
Separately, the House Appropriations Committee on Tuesday approved a spending bill that contains provisions to block the Justice Department from rescheduling marijuana.
The rescheduling proceedings have generated significant public interest. While moving marijuana to Schedule III wouldn’t federally legalize it, the reform would free up licensed cannabis businesses to take federal tax deductions and remove certain research barriers.
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Meanwhile, two GOP senators introduced a bill in February that would continue to block marijuana businesses from taking federal tax deductions under Internal Revenue Service (IRS) code 280E—even if it’s ultimately rescheduled.
Beyond the hearing delays, another complicating factor is the change in leadership at DEA under the Trump administration.
U.S. Department of Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. was previously vocal about his support for legalizing cannabis, as well as psychedelics therapy. But during his Senate confirmation process in February, he said that he would defer to DEA on marijuana rescheduling in his new role.
Separately, former Rep. Matt Gaetz (R-FL) was reportedly photographed reviewing a document that appears to be a draft contract to provide services—including “administration-related guidance”—to a firm affiliated with the major marijuana company Trulieve. The visible portion of the document describes a lucrative bonus if a certain “matter resolves,” with an “additional ‘Super Success Fee’” for other “exclusive policy remedies.”
Last month, the former congressman reiterated his own support for rescheduling cannabis—suggesting in an interview with a Florida Republican lawmaker that the GOP could win more of the youth vote by embracing marijuana reform.
Gaetz also said last month that Trump’s endorsement of a Schedule III reclassification was essentially an attempt to shore up support among young voters rather than a sincere reflection of his personal views about cannabis.
A survey conducted by a GOP pollster affiliated with Trump that was released in April found that a majority of Republicans back a variety of cannabis reforms, including rescheduling. And, notably, they’re even more supportive of allowing states to legalize marijuana without federal interference compared to the average voter.
Meanwhile, Trump picked former Florida Attorney General Pam Bondi (R) to run DOJ, and the Senate confirmed that choice. During her confirmation hearings, Bondi declined to say how she planned to navigate key marijuana policy issues. And as state attorney general, she opposed efforts to legalize medical cannabis.
Amid the stalled marijuana rescheduling process that’s carried over from the last presidential administration, congressional researchers recently reiterated that lawmakers could enact the reform themselves with “greater speed and flexibility” if they so choose, while potentially avoiding judicial challenges.
Meanwhile, a newly formed coalition of professional athletes and entertainers, led by retired boxer Mike Tyson, sent a letter to Trump on Friday—thanking him for past clemency actions while emphasizing the opportunity he has to best former President Joe Biden by rescheduling marijuana, expanding pardons and freeing up banking services for licensed cannabis businesses.
Photo courtesy of Philip Steffan.
