Law and Politics: Why Marijuana Rescheduling's One-Sided Hearing Matters

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On April 28, 2026, Acting Attorney General Blanche (“AG”) issued a notice of hearing concerning the proposed rule to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (“CSA”). The notice replaced the hearing that began in December 2024 (“2024 Hearing”), which the AG terminated upon issuing the new notice.

The hearing invited interested persons, as defined in 21 CFR 13011.01(b), to file a notice of intention to participate. Under that regulation, an interested person is someone adversely affected or aggrieved by “any rule or proposed rule issuable pursuant to [] 21 U.S.C. 811,” the provision governing rescheduling under the CSA.

On June 18, 2026, the DEA published the participant list for the new hearing. The seven approved participants all oppose rescheduling. That fact has generated significant debate within the cannabis industry, not because of who was selected, but because of who was not.

When I first saw the list, I did not view it as particularly significant. At first glance, these participants appear to fit within DEA’s definition of interested persons. Proponents of Schedule III generally do not. After spending more time thinking about it, I began to question my initial reaction.

The central issue is straightforward. The hearing will consist entirely of prohibitionist arguments. No invited participant will be present to rebut those arguments or affirmatively advocate for Schedule III. Many will correctly note that HHS’s recommendation, DEA’s proposed rule, and the nearly 43,000 comments (70% of which support rescheduling) submitted during the notice-and-comment process already contain the arguments in favor of rescheduling. That is true. Even so, there is something inherently problematic about a proceeding in which only one side is allowed to present its case.

As I discussed this issue with others within the industry, two competing views emerged. One side sees rescheduling entirely as a political process. From that perspective, the participant list is largely irrelevant because the ultimate outcome will be driven by politics rather than procedure. The other side focuses on the administrative record, where evidence, not politics, will determine the outcome. Under that view, excluding proponents matters because it creates a one-sided proceeding that could influence future litigation and the DEA’s ultimate decision..

The legal argument

Standing

In the 2024 Hearing, proponents were permitted to participate after successfully arguing that they qualified as “interested persons” because they would be adversely affected by rules DEA would need to promulgate if marijuana were moved to Schedule III. The current hearing relies on the same definition of “interested person” and the same underlying statutory framework. Yet this time, no proponents were permitted to participate. The obvious question is: what changed? It wasn’t the law.

DEA has not explained why proponents who were deemed sufficiently affected to participate in the 2024 Hearing are no longer sufficiently affected in 2026. That omission is particularly noteworthy given that the potential outcomes remain the same. DEA could move marijuana to Schedule III, leave it in Schedule I, or place it in Schedule II. Each of those outcomes would directly affect the interests of those advocating for rescheduling.

Even after proponents were permitted into the 2024 Hearing by DEA, the ALJ in the case applied a separate four-part framework to determine whether proponent participation was appropriate. Under that framework, only the National Cannabis Industry Association was granted full standing, although several other proponents were permitted to participate in a more limited capacity. Importantly, Judge Mulrooney considered whether a participant’s involvement “would meaningfully assist the decision-making.” That consideration appears to be absent from the current hearing, despite the fact that proponents could provide arguments, evidence, and perspectives that are otherwise missing from the record.

The 2024 Hearing recognized that proponents had a sufficient interest in the outcome to warrant participation. The same conclusion should apply here. The definition of “interested person” extends to anyone adversely affected by a rule or proposed rule that DEA is authorized to issue. Because DEA has the authority to maintain marijuana in Schedule I, move it to Schedule II, or place it in Schedule III, proponents of rescheduling plainly have interests that could be affected by the agency’s final decision. In most legal contexts, parties whose interests may be materially impacted by government action are afforded an opportunity to be heard. Excluding proponents from this hearing therefore raises legitimate questions not only about fairness, but also about whether the administrative record will fully reflect the arguments and evidence on both sides of the issue.

This exclusion of qualified parties raises serious concerns as to the DEA and ALJ’s motives for the hearing. Administrative hearings generally impose broader and more flexible requirements that than Article III courts. Article III standing should serve as the ceiling for participation, not the floor. Federal courts routinely recognize the importance of allowing affected parties to protect their interests, even when they are not parties to the litigation. Federal Rule of Civil Procedure 24, for example, permits intervention when a non-party’s interests may be impaired by the outcome of a case.

While an administrative hearing is not federal litigation, the underlying principle is the same. When individuals or organizations have a meaningful stake in the outcome, there is value in allowing their arguments and evidence to become part of the record, ensuring not only a more complete evidentiary record but also a fair and balanced proceeding. Here, proponents of Schedule III have a direct interest in the outcome, yet they have been excluded from participating.

Administrative record

That is why the one-sided nature of this hearing is concerning. The issue is not simply fairness. It is whether the administrative record will fully reflect the arguments on both sides of one of the most significant drug policy decisions in modern history. As the 2024 Hearing demonstrated, preserving the record matters. Any final scheduling determination will almost certainly be challenged in court, and the record developed during these proceedings will play a central role in that review.

Some have argued that allowing only prohibitionists to participate could ultimately strengthen a final Schedule III determination. Under that theory, if DEA moves forward with rescheduling after hearing only from opponents, a reviewing court could conclude that critics were given every opportunity to present their case. That argument has some merit.

The concern here arises if DEA ultimately declines to move marijuana to Schedule III and instead places it in Schedule II. A Schedule II determination would acknowledge accepted medical use while leaving many of the industry’s most significant tax burdens intact. If that is the outcome, the hearing record may consist largely of prohibitionist testimony, prohibitionist studies, and prohibitionist interpretations of the evidence. DEA would effectively be left as the only entity defending its proposed rule and HHS’s recommendation.

That is a risk the industry should not ignore. Regardless of where marijuana is ultimately placed, litigation is virtually certain to follow. The question is whether the record being developed today will be strong enough to withstand that challenge tomorrow.

This concern becomes even more significant given the longstanding speculation about opposition to rescheduling from within the DEA. When former DEA Administrator Anne Milgram did not sign the proposed rule, questions emerged about whether resistance within the agency led to her decision. Whether those concerns were justified remains unclear, but they illustrate why some observers are uneasy about relying exclusively on DEA to defend the proposal.

The industry should not focus solely on whether DEA ultimately issues a final order moving marijuana to Schedule III. It should also be focused on the administrative record that will accompany that decision into the inevitable litigation that follows. Regardless of where DEA ultimately places marijuana, a legal challenge is almost certain.

That reality makes the composition of the record critically important. If the record consists primarily of HHS’s recommendation, public comments, and a hearing dominated by prohibitionist arguments, courts may be left with an incomplete picture of the evidence supporting rescheduling. While HHS’s recommendation remains a significant piece of the record, it was completed years ago and will undoubtedly be challenged by opponents using more recent studies and data.

Proponents of Schedule III often point to HHS’s findings as the strongest indication that rescheduling will ultimately occur. That may prove to be correct. The problem, however, is that HHS’s recommendation cannot defend itself. If opponents present current studies, expert testimony, and critiques of HHS’s analysis during the hearing, someone must be prepared to respond. Without proponents participating in the proceeding, many of the studies, experts, and arguments supporting rescheduling may never become part of the hearing record.

Another issue involves the prohibitionist argument regarding HHS’s accepted-medical-use analysis. SAM and others contend that HHS’ reliance on a new two-factor framework rather than the five-factor approach historically associated with FDA review was arbitrary. There is nothing inherently improper about an agency modifying its analytical framework. Agencies do so regularly. The problem is that if neither HHS/FDA nor outside proponents actively defend the rationale during the hearing, those arguments may never be fully developed in the record.

That is why preserving the record matters just as much as the ultimate scheduling determination. The issue is not simply whether DEA reaches the correct outcome. It is whether the record supporting that outcome is robust enough to withstand judicial review.

Of course, all of this assumes that legal process is what ultimately drives the outcome. Many within the industry believe that assumption is wrong.

The politics

Many observers view rescheduling primarily through a political lens. Under that perspective, the hearing itself is secondary. What matters is whether the administration has already decided where it wants to land.

I have seen this industry argue this dynamic before. When Senators Booker, Schumer, and Wyden introduced the Cannabis Administration and Opportunity Act (“CAOA”), the industry urged patience and confidence in Sen. Schumer and the legislative process. When Sen. Schumer shelved a vote on SAFE Banking in favor of the CAOA, critics were told not to worry and to trust that meaningful reform was coming. Despite continually fundraising on cannabis liberalization, Sen. Schumer was never going to push meaningful reform that could pass Congress. The same thing could be happening here.

I hear similar arguments today. Many people assume Schedule III is inevitable because of President Trump’s prior statements supporting reform. I am not nearly as confident. Political support is not the same thing as a final decision, and anyone who has followed cannabis policy for the last decade knows how quickly expectations can change.

That uncertainty is one reason the hearing itself remains important. If Schedule III were truly inevitable, one could reasonably ask why DEA chose to hold another hearing at all. DEA already possessed HHS’s recommendation, its own proposed rule, and a substantial public record. There were legal pathways available that did not require the process now unfolding. The hearing is not needed.

That does not mean rescheduling will fail. It simply means that confidence should not be mistaken for certainty.

Change in political landscape

At the same time, the political landscape has changed. Many within the industry believe that the path to Schedule III depends less on legal arguments and administrative procedure than on political relationships and influence. Whether that view is correct remains to be seen, but it reflects a growing belief that marijuana rescheduling has moved beyond traditional administrative law and into the realm of executive discretion and political decision-making.

That belief has fueled much of the optimism surrounding Schedule III. If the outcome has already been decided at the highest levels of government, then the hearing itself may be little more than a procedural formality. Under that view, concerns about who participates in the hearing, what evidence is presented, and how the record is developed become far less significant.

Future litigation

The problem with the “political influence” argument is that it focuses almost entirely on the decision itself and not on what happens afterward. Even if political influence ultimately contributes to a Schedule III determination, the resulting order will still be subject to judicial review. Circuit courts are not going to evaluate political relationships or campaign promises. In fact, relying on a quid pro quo for rescheduling could backfire and lead a court to side with opponents. A court is going to care about the merits and administrative record, not living up to a quid pro quo.

That brings us back to the central concern raised throughout this article. If the record presented to the court is dominated by prohibitionist testimony, prohibitionist studies, and prohibitionist arguments, then even a favorable scheduling determination could face significant challenges on appeal. The same reasoning that many believe guarantees Schedule III could ultimately increase the importance of the hearing record that is being created today.

الخلاصة

The ALJ for this hearing just issued an order laying out the process for this hearing. While opponents retain control of arguments presented, the DOJ/DEA retain the ability to call their own witnesses during the hearing. That may provide one of the clearest indications of where the agencies actually stand on rescheduling. If DOJ/DEA call representatives from HHS/FDA, or other witnesses who support Schedule III and can defend HHS’ recommendation against the prohibitionist arguments raised during the hearing, that would be a positive sign for the prospects of rescheduling. On the other hand, if they decline to present witnesses in support of their own proposed rule, it could signal that the road to Schedule III remains far longer–and more uncertain–than many in the industry currently believe.

The significance of this hearing depends on a question that nobody can yet answer: is marijuana rescheduling ultimately being driven by law or by politics?

Either way, excluding proponents from the hearing is a serious concern. A one-sided record creates risks for both the administrative process and any future litigation.

The reality may lie somewhere between those two extremes.

What seems clear to me is that the cannabis industry cannot afford to rely exclusively on politics. Nor can it assume that legal arguments alone will carry the day. Long-term success requires both. The industry should continue supporting reform politically while also insisting on rigorous procedures and a complete administrative record. Only then can it help build a durable transition from prohibition to a stable and sustainable regulatory framework.

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