American political anxiety is at an all-time high with recent activity from the United States Supreme Court. From granting presidential immunity to criminalizing unhoused people, questions are hanging in the balance. For people closely watching the path to cannabis reform, one recent Supreme Court ruling may have a serious impact.
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The Chevron doctrine granted the Environmental Protection Agency regulatory power 40 years ago, solidifying the same to other feds in the process. At that time, judges were told to respect agency interpretations of laws, particularly if the law in question was unclear.
By overturning this decision, Congress must explicitly give that regulatory power to the federal agencies. This could mean that when the agencies want to make a change, the process could become far more complicated. After all, Congress typically takes its time.
So, what does that mean for weed?
The impact on cannabis rescheduling
The current effort to reclassify marijuana comes down to the Drug Enforcement Agency (DEA). According to reporting from Green Market Report, several cannabis industry insiders fear the potential Congressional hiccups could dissuade the DEA from enacting any sort of change.
Attorney Leah Heise told GMR that the juice may not be worth the squeeze.
“I’m concerned that not only will (rescheduling) be reversed, but that it may not happen because the agency is going to have to be far slower and more meditative about how they’re doing this rulemaking,” Heise said. “An agency’s goal, anytime they’re issuing regulations, they’re always thinking about the challenges that are coming. What’s their budget to enforce against these challenges?”
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Fellow attorney Josh Schiller agreed with Heise, fearing rescheduling could be “canceled.” He believes anti-cannabis groups could sue to block reform, creating a roadblock that may never be removed.
“They will file cases, and they’ll say a court should decide whether marijuana is capable of being abused and/or is considered medicinal, and they’ll throw out everything the Biden Administration has done to try to get marijuana reclassified,” Schiller reportedly said. “So that effort, which was supposed to help the industry, will be stayed for a while, if not permanently.”
Some experts argue Chevron ruling will make rescheduling easier
That’s not to say that all cannabis industry analysts are pessimistic. Matt Zorn, a partner at Yetter Coleman LP, said the Chevron decision actually helps the case for rescheduling by erasing previous arguments the DEA made against marijuana reform.
In the current rescheduling efforts, the Department of Health and Human Services (HHS) recommended the DEA move cannabis to Schedule III, a decision endorsed by the Office of Legislative Counsel. Zorn explained that this recommendation is based on the Controlled Substances Act (CSA) itself (not the DEA’s opinion), which is precisely what the new Supreme Court ruling calls for.
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“All in all, Chevron’s demise was an unquestionably positive sign for rescheduling back when DEA used its five-part test to reject rescheduling petitions,” Zorn wrote in a Substack post, as reported by Green Market Report. “Now, however, HHS used a new test. That test follows from the plain meaning of the statutory text. HHS applied that test according to delegation in the CSA that has it making findings/determinations on medical and scientific matters.”
The rescheduling process is currently in public comment mode, with Americans given a few more weeks to offer their opinions on the matter. Once that wraps up, the DEA will continue its review. At that point, the impact of the Chevron decision will be better understood. Until then, experts can only speculate, while advocates hope the final decision is in their favor.
