The hearing that could decide weed’s federal future starts June 29. The DEA invited seven participants, and every one of them is against reform. It won’t be livestreamed. And loading the room this hard might be the thing that gets the whole rule thrown out in court.
On June 29, the federal government will hold a hearing that will help decide whether all marijuana (not just medical cannabis and FDA-approved products) moves to Schedule III. Seven outside parties got a seat in the room. All seven oppose rescheduling. Not one supporter of reform made the list.
That is not an exaggeration. The DEA released its roster of “interested persons” on June 18: the National Drug & Alcohol Screening Association, the Tennessee Bureau of Investigation, the prohibitionist group Smart Approaches to Marijuana, the states of Nebraska, Idaho, Indiana and Louisiana, the group DUID Victim Voices, and two individual doctors. Every name on it has lined up against loosening federal cannabis law, and some have sued to block the reform outright. As Cannabis Business Times put it, this appears to be the first known ALJ hearing on a rule of major public interest in which one entire side is shut out.
You Can Only Get In If You’re Against It
The reason no reform supporter got in is a piece of logic worthy of a Kafka novel. To qualify as an “interested person,” the DEA decided you have to be “adversely affected or aggrieved” by the proposed rule. Since reform groups support moving cannabis off Schedule I, the agency reasoned, they cannot be harmed by it, so they have no standing to show up.
That logic swept out everyone. NORML, which has represented cannabis consumers for more than 50 years, was rejected, as the group itself reported. So were the Drug Policy Alliance, the American Trade Association for Cannabis & Hemp, and Nabis, the country’s largest licensed cannabis wholesale distributor. In a rejection letter to the Drug Policy Alliance, first reported by Marijuana Moment, DEA Administrator Terrance Cole wrote that the group had not shown it was “adversely affected or aggrieved” because it supports the reform in the first place.
The detail that gives the game away: the veterans group Hemp for Victory qualified to participate under the same definition, for the same proposed rule, during the Biden administration, when then-Administrator Anne Milgram seated both supporters and opponents. The rule did not change. The definition did not change. The administration did. Milgram’s process had 25 designated participants, some of them pro-reform. This one has seven, all against.
“More than 70 percent of public comments submitted on the proposed rule supported decriminalization, yet many of the patients, consumers, families, small businesses and individuals who have borne the consequences of prohibition have been excluded from meaningful participation in these proceedings,” Cat Packer, the Drug Policy Alliance’s director of drug markets and legal regulation, told Marijuana Moment. Researchers at Johns Hopkins and UC San Diego found that 92.4% of the roughly 43,000 public commenters backed the Schedule III move or wanted more reform. None of that view will have a voice in the room.
Now the DEA Has to Argue for the Reform It Spent Decades Fighting
Here is where it gets strange. With every outside supporter locked out, the only party left to defend rescheduling is the DEA itself. The chief administrative law judge overseeing the hearing, Derek Julius, confirmed in a preliminary order that the government is “the proponent” of the rule and carries “the burden of proof.” So the agency that spent decades as the hardest line in federal drug enforcement is now, on paper, the lone voice arguing to loosen the law.
Except it won’t quite say it wants to. The proposed rule itself notes the “DEA has not yet made a determination as to its views of the appropriate schedule for marijuana.” The agency has to carry the rule without committing to it, a posture reform supporters have watched with deep skepticism, given the DEA’s history.
That tension produced the oddest fight of the run-up. Smart Approaches to Marijuana, one of the seven invited opponents, wants to call Luli Akinfiresoye, a pharmacologist inside the DEA’s own Drug and Chemical Evaluation Section, to testify. She authored a report in the earlier Biden-era process that tied cannabis to psychosis, depression and cognitive impairment, exactly the kind of testimony an opponent would want on the record. And the DEA is resisting putting her on the stand. “The Government does not intend to identify Dr. Akinfiresoye as witness for our case in chief,” a DEA attorney wrote to SAM, per Marijuana Moment, leaving the group to try to subpoena her and run into a wall of Touhy regulations and Privacy Act claims. So the DEA stacked the room with opponents, then moved to keep its own most damaging anti-cannabis witness off the stand. Both things are true at once.
A Public Hearing You Can’t Watch
For a proceeding everyone keeps calling historic, it will be remarkably hard to see. Julius ruled that the hearing “will not be televised, livestreamed, or broadcasted in any way,” and barred recording devices from the courtroom and even the lobby. If you want to watch one of the most consequential cannabis policy hearings in a generation, you have to fly to a DEA facility at 700 Army Navy Drive in Arlington, Virginia, and hope for one of a handful of seats.
The judge wrote that the “national public interest in this issue predicates towards a policy of transparency” in the same order that banned the cameras. The Biden-era version of this hearing was livestreamed. This one will not be. Marijuana Moment’s counsel, Joseph Bondy, sent Julius a letter this week asking him to reconsider, arguing that a “public hearing is not meaningfully public if access depends on the happenstance of limited physical attendance.” The scope has been narrowed, too: because medical cannabis already moved to Schedule III in April, the judge ruled the hearing will weigh only whether the rest of the plant should follow. And there will be no closing arguments.
Stacking the Deck Might Backfire
The twist no one stacking this hearing seems to have priced in: a one-sided record is a weak record. Whatever the DEA decides, the rule will almost certainly be challenged in court, and it already is. Three separate coalitions have filed consolidated petitions in the D.C. Circuit seeking to freeze or kill the rescheduling order outright.
A reviewing court looks at the administrative record that the agency built. If that record contains only opposition, with no evidence or testimony from the supporters who make up the overwhelming majority of public comment, the government may have a hard time showing it weighed the question fairly. Cannabis Business Times flagged exactly this risk: the government “may lack a sufficient administrative record to defend a Schedule III decision in judicial review” precisely because it shut the supporters out. In trying to control the room, the DEA may have handed reform’s lawyers their opening.
Even a Win Might Not Mean Much
And here is the part that should temper anyone expecting a clean outcome either way: nothing about this hearing is binding. There is no verdict at the end. Julius will eventually issue a recommendation, but the DEA and the Justice Department are free to follow it or ignore it, and there is no deadline forcing them to act at all. “There are two parties under no deadline: the ALJ, and the DEA,” Jason Adelstone, an attorney with Harris Sliwoski, told MJBizDaily. “The ALJ can take as long as he likes to make a determination, and the DEA can take as much time as they want after they’ve received it.”
The judge’s recommendation is not even limited to a yes or no on Schedule III. He could land on Schedule II instead, a tighter classification that would tangle the existing $28 billion industry in pharmacy-style controls, or recommend leaving cannabis right where it is on Schedule I. We saw how fragile this gets last year, when the Biden-era version of these proceedings stalled and was ultimately scrapped. As Riana Durrett, who directs the Cannabis Policy Institute at UNLV, told MJBizDaily, there will be no neat resolution, and “we may not get all the way through the process in the near future.”
The hearing runs June 29 through July 15, with a recess on July 3 so everyone can celebrate 250 years of American independence, then back at it July 6. The government presents first on June 29, followed across July by NDASA, Smart Approaches to Marijuana, DUID Victim Voices, the two doctors, the Tennessee Bureau of Investigation and the four states, each with its own assigned day. When it ends, the judge issues a recommendation, the DEA decides if and when to act, and the courts likely get the last word. The people most affected by the outcome, the millions who use the plant and the businesses built around it, will be watching from outside the building. If they can find a seat.
