The government spent most of its final brief making the legal case for Schedule III. Then, in the closing pages, it took the opposition’s witnesses apart, and quoted some of those same witnesses to prove cannabis is medicine. One scientist walked away almost untouched. She works at the DEA.
The federal government’s closing argument for moving marijuana to Schedule III is in, and its lawyers did not hedge. “Marijuana can no longer remain in Schedule I,” the DEA’s attorneys wrote in a post-hearing brief filed August 17 with Chief Administrative Law Judge Derek C. Julius, asking the judge to “expeditiously recommend” the transfer.
It is the government’s last word before Julius drafts the recommendation that will frame DEA Administrator Terrance “Terry” Cole‘s final decision. And it lands where this proceeding was always going to land: not on whether cannabis has medicinal value, but on which legal test gets to answer that question, and on whose testimony the judge should be allowed to believe.
High Times has covered this hearing since before it opened: the participant roster stacked entirely with opponents, the DOJ’s argument that those opponents’ real injuries are commercial, and the stretch of days in which the opposition’s own witnesses kept helping the government. The closing brief turns that pattern into legal strategy.
Six briefs arrived by the August 17 deadline, as first reported by Marijuana Moment: the government’s, a joint filing from Smart Approaches to Marijuana and the states of Idaho, Indiana and Nebraska, separate briefs from the Tennessee Bureau of Investigation and the National Drug and Alcohol Screening Association, a joint brief from DUID Victim Voices and pain physician Dr. Kenneth Finn, and a pro se statement from pharmacist Dr. Phillip Drum. Julius capped each at 50 pages. The government used all 50. On Thursday morning, the judge issued the order correcting the hearing transcript, putting the full record in public hands by August 26.
Getting cannabis out of Schedule I is the easy half, and the brief treats it that way. Schedule I requires that a substance have no accepted medical use. The 2023 Health and Human Services evaluation found three: chronic pain, anorexia related to a medical condition, and nausea and vomiting from chemotherapy. One is enough. A 2024 Office of Legal Counsel opinion holds that the DEA owes those scientific findings “significant deference” and cannot redo them from scratch. Then the brief adds the arithmetic: more than 30,000 practitioners authorized to recommend cannabis to more than six million patients across 43 U.S. jurisdictions, which the government says also undercuts any claim that cannabis cannot be used safely under medical supervision.
Getting it in Schedule III specifically takes dozens more pages on abuse potential and dependence, most of it built on the HHS comparison of cannabis against heroin, fentanyl, cocaine and prescription opioids, plus government witness Dr. Corey Burchman‘s testimony that opioid withdrawal is “horrific” while cannabis withdrawal rarely sends anyone to a hospital.
A reminder of what’s actually on the table, because coverage of this saga keeps blurring it: April’s order already aimed to move FDA-approved cannabis products and state-licensed medical marijuana to Schedule III. This proceeding decides whether the rest of the plant follows. The government wants all of it moved, while keeping cannabis federally controlled either way.
The Closing Pages
Julius ruled before the hearing that all expert designations would be decided afterward, in writing. The government took him up on it. Starting on page 43, the last eight pages of the brief work through the opposition’s witnesses one at a time, sorting what it calls the “so-called expert witnesses” into different grounds for disqualification.
Some testified outside their expertise, the brief argues. Yale psychiatrist Dr. Deepak D’Souza was offered by the states as an expert in five areas and then asked about pain management, which the brief notes sits outside the boundaries D’Souza drew around his own expertise on the stand.
Some answered the wrong question entirely, per the government: workplace drug-testing witnesses describing hypothetical future hurdles, a state investigator who spoke about “deregulation” and “legalization” in a proceeding that would do neither, and Humboldt County Sheriff William Honsal, whom the states never properly noticed as an expert and who, the brief says, admitted he has “no meaningful connection to Nebraska, Idaho or Indiana,” the three states that called him.
The sharpest allegation gets its own section. According to the filing, Ed Wood of DUID Victim Voices and Finn both ignored the tribunal’s sequestration instructions and admitted to reading transcripts of earlier testimony before taking the stand. Their testimony, the government argues, “has been irreparably tainted and cannot be cured other than providing it little to no weight.” The brief cites transcript pages for both admissions. Those are the government’s characterizations of a record the public still cannot read—though that changes next week.
Dr. Drum, testifying on his own behalf, painted a different picture. He told the tribunal there is no scientific indication or medical use for plant-based marijuana, and the brief notes his opinion on cachexia and cancer pain rests on personal experience with two patients. It also notes what he said next: that Schedule II “would be potentially more appropriate level for marijuana,” because of how fast it absorbs. Schedule II is stricter than Schedule III. It is still not Schedule I. A designated party who came to oppose rescheduling told the judge, under oath, that cannabis belongs somewhere other than where it is.
The filing allows itself one moment of grace. Of Laura Stack, who testified about losing her son, the government writes that it “acknowledges the personal impact of Ms. Stack’s testimony and commends her testimony.” Then it goes back to work.
Because the same brief that asks Julius to discount these witnesses also quotes them making the government’s case. “Testimony from both Government and Opposed Parties alike support the Government’s position,” it argues, and the receipts follow. Harvard’s Dr. Bertha Madras, SAM’s marquee expert, “testified that there is scientific evidence of marijuana’s efficacy for neuropathic pain patients, although she believes that the science is weak,” per the brief, and her own demonstrative exhibit noted benefits for wasting syndrome, appetite and pain in cancer patients and severe nausea. D’Souza described a study in which a standardized cannabis extract beat placebo for pain.
Finn gets perhaps the most lawyerly treatment in the document. A footnote sets up the fallback in advance: the government believes his testimony should get no weight because of the sequestration problem, but “should the Tribunal choose to give any consideration” to it, the brief highlights the parts where he admits he recommended marijuana to his own pain patients and believes there is likely a therapeutic benefit. Throw him out. If you won’t throw him out, he’s ours.
“The evidence proffered by the Opposed Parties boils down simply to the fact that Schedule III marijuana poses employment and enforcement difficulties, the same as any other controlled substance in Schedules II – V.”
The Witness They Didn’t Touch
Dr. Luli Akinfiresoye is a pharmacologist in the DEA’s Drug and Chemical Evaluation Section and an author of the agency’s own scientific review. SAM called her, and she delivered. The SAM and states brief cites her 25 times, using her testimony to argue that cannabis fails the five-part medical-use test the DEA applied for decades, including her line that there was no clear data supporting cannabis for chronic pain.
Cannabis Business Times, which first reported the brief’s credibility strategy, described her as the lone witness the government didn’t pick apart. The document is a shade stranger than that. Akinfiresoye appears in the government’s 50 pages exactly once, cited in support of the government’s own finding that marijuana has no consistent, reproducible chemical profile. The eight pages devoted to picking apart everyone else never name her.
Her actual conclusion does get answered, but on a different level. The government’s response is that the OLC found the five-part test “impermissibly narrow” and the newer two-part inquiry legally sufficient, so a witness applying the old test is applying a standard that no longer controls. That is not a rebuttal of her science. It is a request for a ruling about which science counts.
Which is the tell: against the sheriff, the pharmacist, the drugged-driving advocate and the Harvard addiction expert, the government litigates credibility and relevance. Against its own scientist, it shifts ground and argues that the question she answered is beside the point.
One more small detail, from the order Julius signed Thursday morning. On the tenth hearing day, when her surname came up, the official transcript rendered it “Akinfire-Soye.” The tribunal corrected it this week.
The Opposition’s Case
The other briefs are worth reading too, starting with the signature block. The SAM and states filing is signed by Patrick Philbin, former deputy White House counsel to Donald Trump, of Torridon Law, the firm founded by former Attorney General William Barr. It opens by noting the government has considered rescheduling marijuana “no fewer than nine times, most recently in 2016” and refused every time, then argues abuse and mental-health harms have worsened since. Its bluntest line comes a section header calling the two-part standard a test “That Was Made Up for This Proceeding.” Its conclusion: the government “has not carried its burden,” and marijuana should stay in Schedule I.
Tennessee’s investigators barely engage with the science. Their brief leads with a procedural knife: the attorney general long ago delegated scheduling authority to the DEA administrator, yet the attorney general issued the rescheduling proposal himself. “That alone is enough to hold the NPRM deficient and keep marijuana in Schedule I,” TBI writes.
NDASA’s brief traces the history of federal drug testing, from Reagan’s 1986 executive order through the 1987 Conrail crash, and builds toward one warning: because the federal testing framework defines illegal drugs by reference to Schedules I and II, moving marijuana to Schedule III could pull the legal floor out from under the Department of Transportation’s testing program, which its witness called the largest in the world. The DUID Victim Voices and Finn brief closes on the human register, invoking a “memorial roll of young people” and accusing the agency of institutional inaction. And Drum, filing alone, opens by declaring marijuana “not a medicine” and numbering the industry’s claims as fraudulent statements one and two.
What Happens Now
The record is nearly closed. On Thursday morning, Julius issued a 13-page order correcting the hearing transcript across all eleven days, and set August 26 as the deadline for the fully corrected version to go up on DEA’s website, with the fixes marked in red. Six parties filed proposed corrections; NDASA did not. Most of the list is housekeeping: misspelled names, misattributed speakers, dozens of lines on day four assigned to the wrong government attorney. Some of it is not. On day one, “there’s adulterants” becomes “there’s no adulterants.” On day eight, “illegal” becomes “legal.” On day ten, “increase” becomes “decrease.” The court reporter also spent a stretch of day one transcribing “Touhy,” the rule governing testimony by federal employees, as “DUID.”
After that, federal regulations direct Julius to prepare his recommended decision “as soon as practicable,” with no deadline attached. Parties then get 20 days after service to file exceptions, and the record is certified to Cole no earlier than 25 days after service. Cole faces no clock either. And the D.C. Circuit is still sitting on a motion to stay April’s order, a ruling that could scramble all of this in a week.
One footnote in the government’s brief points at the real fight: Julius separately asked the parties to brief the binding effect of the OLC opinion, the document that blessed the two-part test and shelved the five-part one. The judge flagged the exact question this case turns on. If the two-part test governs, the government’s arithmetic wins. If the five-part test survives, the strongest evidence against rescheduling came from a DEA pharmacologist.
The government spent its last eight pages taking witnesses apart. Its own scientist got one citation and a change of subject. She works down the hall.
