The Quietest Fight of DEA’s Life: Reflections on the Marijuana Rescheduling Hearing

The hearing on the Notice of Proposed Rulemaking for the rescheduling of “marijuana” commenced on June 29, 2026 and will end tomorrow, July 15^th. The Government brought two witnesses to the stand on the first day, and then seven prohibitionist organizations had the floor for the remaining seven days of the hearing. As I discussed in an earlier post, the decision not to allow proponents a chance to participate raised flags for me, but it wasn’t necessarily a doomsday scenario.

If you listen to most industry participants who are “reporting” on this hearing, you would think that DEA has stepped into the proponents’ shoes and done everything the industry would have done had it participated. My LinkedIn feed is flooded with this kind of enthusiasm. What is so interesting about all of this is that when you hear from those actually in the room, the enthusiasm shifts to skepticism. Two reporters: Natalie Fertig, in an interview with Cultivated Media; and Emily Dufton, in her three part series in WeedWeek, have attended the hearings. They have questioned DEA’s handling of this hearing. Both have discussed how DEA is not putting on much of a show at all. Dufton discussed in her latest installment how DEA’s own witnesses, especially Dr. Corey Burchman, did not perform especially well. During the prohibitionists’ case in chief, DEA has offered few objections, and it abstained from cross examining most witnesses at all.

As both reporters have suggested, this may be DEA’s strategy. DEA may believe that it has a winning case, so its focus should be only proving that marijuana has at least some medical efficacy and has not killed anyone. The problem with this, as I noticed in Fertig’s interview, is that there is another option outside of Schedule I and III that the ALJ can choose–Schedule II. It seems like everyone has forgotten this option. Schedule II acknowledges medical efficacy and includes substances with less harm than those in Schedule I. For an ALJ who seems to know very little about marijuana, it would make sense for him to go with II, if all he is hearing is refer madness from prohibitions and little rebuttal from DEA.

What is DEA doing in the marijuana rescheduling hearing?

As I mentioned in my earlier post, those in the know within the industry believe Schedule III is a done deal. If you believe that, then the hearing doesn’t mean anything as far as what DEA will ultimately decide. The one issue I have with that argument is this: if it were such a done deal, the Acting Attorney General would have just moved “marijuana” into Schedule III in the first place. He could have then issued proposed rules for the medical framework that is currently being litigated in the DC Circuit. This would have protected the final rule from the likely overreach of the medical marijuana framework and avoided the potential problem of the ALJ recommending Schedule I or II. There was never a need for a hearing on the rescheduling of “marijuana.” In fact, DEA ALJ hearings are extremely rare. The AG could have just moved marijuana into Schedule III under a final rule, skipping the hearing altogether. Instead, DEA risked an ALJ that could recommend Schedule I or II, which would weaken DEA’s argument on challenge at the DC Circuit.

Do DEA’s actions during the hearing tell us anything about what’s going on behind the scenes?

I don’t think so. This strategy could make sense whether DEA is a true proponent, or an opponent, of the proposed rule. We know, based on the first rescheduling hearing, that DEA personnel are against rescheduling. So, the complacency we see in this hearing could just be employees who don’t care about the outcome. Either they don’t want to put on a strong showing and are just doing the bare minimum to save face, or they have already been told Schedule III is a done deal and are, again, just doing the minimum to save face. The other possibility is that DEA is actually a proponent of this rule and is strategically laying back, believing the evidence speaks for itself.

There are two problems with that latter theory. First, by laying back at the hearing, DEA is resting on the ALJ accepting Schedule III. While a DEA decision may be forgone, I assume the ALJ’s decision is not. Second, this is the DEA we are talking about. Until about five minutes ago, DEA was buddies with Kevin Sabet and continues posting anti-marijuana warnings.

A side note

In 2023, DEA suggested that instead of doing drugs, kids should focus on becoming Instagram influencers. I bring this up in particular because marijuana’s potential effect on youth mental health and harm on children’s brains is a focus of this hearing, and of prohibitionist arguments in general.

Some studies have shown that frequent social media use, reported by approximately 75 percent of high school students, is associated with a greater prevalence of bullying, feelings of sadness and hopelessness, serious consideration of suicide, and having made a suicide plan. The CDC reports that 22 percent of all U.S. high school students seriously considered attempting suicide in 2021, up from 16 percent in 2011. Meanwhile, the suicide rate for people aged 10 to 24 rose 62 percent from 2007 through 2021, reaching 11.0 suicides per 100,000 people in that age bracket. Even if only one of those deaths were caused by social media, social media would still be deadlier than marijuana. Marijuana is not even a substance the CDC tracks for drug overdoses, and to my knowledge no one has died from marijuana consumption.

So, based on this data, I assume prohibitionists should want to ban all social media. Some harms comes from it and therefore it should be banned, right? I mean that is SAM et al.’s argument. Because some people experience extremely negative effects from something, it should be banned. Except for alcohol. Those harms are fine. As I write this, it sounds crazy, that’s the argument being presented.

As a society all of our decisions need to be made by balancing harms and benefits. If we banned everything that could harm someone, we would not have any legal intoxicants. We would also prohibit nutmeg, Tylenol, poppy flowers, and so much more. The goal instead needs to be finding balance, educating people about the potential harms, and making sure resources are available to those who need help navigating addiction, whether that addiction is to social media or marijuana.

Back to the DEA hearing

Whether DEA is doing this out of complacency or strategy, we are going to end up with a slim hearing record that will substantially support the prohibitionist’s arguments. If the ALJ comes back with a recommendation of Schedule I or II, but DEA moves forward with Schedule III anyway, that will be a win for SAM at the DC Circuit. Instead of DOJ having to argue only the merits of moving straight to a final rule without going through a hearing, it will have to argue that the ALJ got it wrong and explain why DEA decided not to listen to the prohibitionists and the ALJ. It will have to defend a scientific HHS record that is several years old against the arguments brought by the other side this year.

An interesting point about the prohibitionists’ arguments

I decided to check out a prohibitionist report on the hearing to see what it had to say, and I was surprised at how weak some of their arguments were. Maybe this is why DEA is just sitting back. I am not surprised that much of what they are saying is nonsense, but surprised at how many holes are in their arguments.

For example, on Tuesday the 7th, the hearing turned to drugged driving risks. The prohibitionists put forward Ed Wood, a father who lost his son Brian in a car crash that killed him instantly. The vehicle that hit Brian was driven by two drug impaired women. Both drivers tested positive for marijuana and methamphetamine, and one also tested positive for heroin. First off, this is an unimaginable tragedy for Mr. Wood, one I can’t imagine living through, and my heart goes out to him and to all of Brian’s family and friends. But that sadness and empathy for the loss of Brian does not justify the proposal Mr. Wood was making. The drivers (the article does say “drivers”, plural, and I am very interested to read the transcript on this point once it is available), were not just on marijuana. They were on methamphetamine, and one was also on heroin. These are two substances known to cause much more intense reactions in users, and methamphetamine is also technically a “less dangerous” drug based on its Schedule II designation. That alone is a perfect example of why marijuana belongs on at least Schedule III. Anyone with eyes, ears, and half a brain knows marijuana is less dangerous than methamphetamine.

Further, the fact that the prohibitionists could not produce a single witness who could testify to a vehicle death caused by someone solely on marijuana says a great deal about how weak their argument really is. Here’s another interesting point. I would assume it would be fairly easy to find someone who lost a loved one in a car accident caused by a drunk driver who also tested positive for marijuana. But there is no way SAM would allow that kind of witness to take the stand. Since alcohol has been used by Western civilization for thousands of years, marijuana must be the real problem, right?

This, however, highlights why DEA sitting back and doing nothing is a problem. DEA should have raised the issue of methamphetamine and heroin also being in the drivers’ systems. The ALJ, presumably not a monster, is going to empathize with stories like this one. Hopefully his decision will focus only on medical efficacy and potential for harm, but it is possible emotion will creep in, and he will land on a compromise by recommending Schedule II.

The unimpeachable argument: medical efficacy and Epidiolex

One noticeable omission from this hearing appears to be a robust defense of marijuana’s medical efficacy. Yes, DEA made something of a showing on the first day, but I have not heard the following argument made at all: Epidiolex, when it was approved and moved into Schedule V in 2018, was marijuana. It came from marijuana, and even in its final FDA approved form, it fell within the definition of marijuana. That decision was made prior to passage of the 2018 Farm Bill, so Epidiolex is unquestionable proof that marijuana has medical efficacy. That fact alone should remove Schedule I from the conversation.

What’s next for marijuana rescheduling

We have no idea how long the ALJ to issue his recommendation, following the conclusion of the hearing on July 15th. He is not tied to any deadline: it could be quick, or it could take months. Further, once his recommendation is made, DEA is also not tied to any timeframe for making its decision. Again, it could be quick, or it could take months. Assuming you believe that Schedule III is bought and paid for, the decision should come pretty quickly. The longer it takes, the more worried I will become.

From what I have heard, the Administration believes this is a winner for November, but I can’t imagine that is as true an argument as it may have been before this year. According to Nate Silver, the Administration is currently dealing with a 56.5% disapproval rating and a 39.7% approval rating. With so much for voters to either love or hate about this Administration, I can’t imagine Schedule III will move the needle much come November.

Conclusion

What we are left with, after fifteen days of hearings, is a lopsided hearing record built almost entirely by the side that opposes rescheduling, with DEA offering little pushback of its own. Whether that was complacency or strategy may not matter much in the end, because either way it hands the prohibitionists a stronger foundation for their arguments than the facts actually support.

For more on marijuana rescheduling and the DEA rulemaking process, please check out these recent posts:

• Law and Politics: Why Marijuana Rescheduling’s One-Sided Hearing Matters
• Would Cannabis Rescheduling Help Businesses in Unified Markets? Washington Weighs In
• The Motion to Stay DEA’s Schedule III Rule: Strong Enough to Stick?
• Standing Is Everything: Three States Join the Medical Marijuana Rescheduling Fight
• Medical Marijuana Rescheduling Q&A: Cutting Through the Noise
• A Calculated Bet: DEA Registration is Open, and the Clock is Ticking
• Marijuana Rescheduling and Income Tax
• The U.S. Opens Its Medical Marijuana Market to Global Trade (For Now); Broader Marijuana Rescheduling on Deck

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Jason Adelstone to Speak on DEA Marijuana Rescheduling Hearing

The DEA’s marijuana rescheduling hearing continues to raise important questions for cannabis businesses, investors, and the industry as a whole. If you’re trying to keep up with where things stand and what may come next, this upcoming MJBizDaily webinar is worth your time.

Harris Sliwoski attorney Jason Adelstone will join a panel of industry professionals to discuss the latest developments from the hearing, what Schedule III rescheduling could mean in practice, and the legal and business issues companies should be watching as the process moves forward.

Jason regularly advises cannabis businesses on regulatory compliance, licensing, and cross-border matters, and he’ll share his perspective on how these federal developments may affect the industry in the months ahead.

The webinar is free to attend. You can register here: DEA Marijuana Rescheduling Hearings: What We Learned and What Comes Next

We hope you’ll join Jason for what should be a timely discussion on one of the most closely watched developments in federal cannabis policy.

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The most famous face in cannabis: How the Zig-Zag Man became a cultural icon

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Up in Smoke: SCOTUS Torches the Federal Marijuana Gun Ban

Until last week, federal law prohibited marijuana users from owning or possessing firearms, even in states where marijuana is legal. In recent years, we have covered the differing opinions by federal courts challenging this status quo. On June 18, 2026, the Supreme Court held in a 9-0 decision in U.S. v. Hemani that 18 U.S.C. § 922(g)(3)’s blanket prohibition on drug users possessing guns is inconsistent with the Second Amendment.

U.S. v. Hemani

Ali Hemani is a dual citizen of the U.S. and Pakistan, born in Texas. In 2022, the government searched his family home over suspected terrorism-related activity. During the search, Hemani surrendered his gun, pointed agents to marijuana on the property (agents also found a small amount of cocaine in a closet), and told them he used marijuana several times a week. Based on that statement and his possession of the firearm, the government charged him under 922(g)(3) for knowingly possessing a gun while being an unlawful user of a controlled substance. It was the only charge brought against him. No charges were filed related to terrorism, drug trafficking, or anything else.

Notably, the government never alleged that Hemani was an addict, that he posed a danger to himself or others, or that he did anything with the gun beyond keeping it at home. At trial, Hemani successfully moved to dismiss the indictment on Second Amendment grounds, and the Fifth Circuit upheld the dismissal, prompting the government to seek Supreme Court review. The Court found that the government “fail[ed] on every metric” to make its case. The outcome itself wasn’t surprising, but the unanimity was.

I, along with our law firm, have been saying for years that 922(g)(3) was unconstitutional. In fact, Shane Pennington, Christian Sederberg, and I once tried raising money to bring this same type of challenge. At the time, there was a lot of interest, but no one wanted to pay – a common reality in this industry. I have researched this issue thoroughly, and after the Supreme Court’s decision in N.Y. State Rifle & Pistol Association v. Bruen, it was clear that 922(g)(3) would not survive.

The Supreme Court’s decision is narrow in its findings but broad in its application.

N.Y. Rifle v. Bruen

Before I discuss the Hemani case in further detail, I should provide a brief overview of the case that reshaped Second Amendment review (and constitutional challenges generally). In 2021, the Supreme Court held that courts evaluating a claimed constitutional right, such as the right to bear arms, must follow a two-step framework. First, courts ask whether the conduct at issue falls within what the Amendment’s text covers. If it does, the regulation is presumed unconstitutional unless the government can justify it.

To rebut that presumption, the government must show that the regulation fits within the nation’s historical tradition – in this case of firearm regulation. This doesn’t require a historical law that’s a perfect match or near-identical precursor to the modern regulation. Instead, courts must look at whether the regulation reflects the same principles that have historically justified firearm restrictions. The government can satisfy this by drawing analogies, and by demonstrating that today’s regulation serves a comparable purpose–i.e., that it imposes a comparable burden to regulations that were well established historically, even if the specifics differ.

In Bruen, Justice Thomas made clear that courts must confine their analysis to history, eliminating any inquiry into means-end scrutiny, and that the government bears the burden of proving the regulated conduct falls outside the Amendment’s original scope. It cannot meet that burden by simply asserting an important interest; it must show the regulation is consistent with that historical tradition.

The Hemani analysis

Moving now to Hemani, the government had the burden of proving that disqualifying an entire category of people, illegal users of controlled substances, from possessing nearly any firearm for any reason whatsoever had a historical corollary. To do so, the government had to point to historical evidence showing that the firearm ban “comport[s] with history and tradition.” This required proof that 922(g)(3) was “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” The government didn’t come close to making that case.

922(g)(3) automatically kicked in the moment someone became a user of any non-prescribed controlled substance and stayed in effect for as long as that use continued. Nothing more was required from the government, not even a trial.

To justify the prohibition, the government, under both the Biden and Trump administrations, relied on what it called “habitual drunkard” laws, while also comparing marijuana users to the mentally ill and terrorists. Not surprisingly, Smart Approaches to Marijuana (“SAM”), a famously pro-alcohol, anti-marijuana advocacy group, submitted a brief to the Hemani Court in support of the gun ban.

SAM and 21 other prohibitionist groups said that while cannabis is “marketed as a ‘chill’ drug by its peddlers,” today’s product has “become increasingly known for its relationship with violence.’” (I’ll ignore their inaccurate conclusion to avoid adding another 1,000 words to this blog post.) SAM, again, is a pro-alcohol group that does nothing to address the extreme violence and harm associated with alcohol use. That’s because (as provided on in SAMs FAQ page) alcohol has a long history in America, is legal, and clears the body within 24 hours. SAM doesn’t seem concerned with the danger’s alcohol poses to society and violence associated with its use. It just seems contented that alcohol is already legal and that most of Western civilization has used it for thousands of years.

The problem with SAM’s arguments and analogizing marijuana users to the mentally ill and to “habitual drunkards” is that the facts don’t support the comparison. On the “habitual drunkard” front in particular, the government’s case had more holes than Swiss cheese.

Habitual drunkards

Historically, before someone could lose any of their rights, even temporarily, the laws the government pointed to generally required some kind of process first. As the Court pointed out: (1) vagrants, for example, typically couldn’t be jailed or sent to a workhouse without first being convicted of an offense; (2) someone deemed a habitual drunkard usually needed a hearing before a body like a probate court before a guardian could be appointed or before they could be committed to an asylum; (3) surety laws commonly called for a hearing before a justice of the peace or similar official before any bond requirement could be imposed. 922(g)(3) includes no such process. It automatically divested someone of their constitutional right to bear arms the moment they became an unlawful drug user.

The Court’s opinion included a rather humorous discussion of the nation’s founders’ drinking habits, noting that if habitual drunkard laws had applied to anyone who simply drank regularly, several of the nation’s most prominent early figures would have been at risk. John Adams reportedly started each day with a tankard of hard cider. James Madison was said by some to drink as much as a pint of whiskey a day, though others dispute this and suggest he favored wine instead, viewing it as the more respectable option. George Washington was known to enjoy several glasses of madeira most evenings, a habit that wouldn’t have marked him as a heavy drinker by the standards of his time. Thomas Jefferson reportedly enjoyed several glasses of wine with dinner. And my favorite example from the Court opinion, just days before the Constitution was signed, a farewell gathering for Washington at a Philadelphia tavern saw 55 guests order 164 bottles of wine, liquor, and beer, plus seven bowls of punch.

In short, early America had a culture where heavy drinking was simply commonplace. One estimate from the era suggests that a large share of the nation’s laborers drank several ounces of hard liquor daily.

Given this backdrop, the historical laws targeting “habitual drunkards” weren’t aimed simply at regular or even excessive drinkers. Instead, they were aimed at people whose drinking left them effectively incapacitated and unable to manage their own affairs. That’s a much narrower category than the one captured by the unlawful user provision in 922(g)(3), at least as the government interprets it.

The Government’s own actions of the past two decades weakened Its arguments

The Court also questioned whether 922(g)(3) actually accomplishes what the government says it’s meant to do: disarming people who are categorically violent, or who pose an unusual danger to others. The Government’s own actions over the past two decades undermine that position. The Department of Justice has instructed federal prosecutors to scale back enforcement against marijuana users, most states have legalized marijuana to some extent, and the government has taken steps to reclassify certain marijuana products under a less restrictive drug schedule. Some surveys now even suggest that regular marijuana users outnumber regular drinkers in the United States.

If the government can strip away a constitutional right just because it thinks that is necessary, with no evidence, no historical precedent, and no legal justification, that’s a slippery slope. The Court stated that affording the government “broad power to designate any group as dangerous and thereby disqualify its members from having a gun” would risk allowing it to “quickly swallow” the Second Amendment.

Effects of the Hemani decision

This ruling is a narrow. It doesn’t address whether the Government could bar addicts, or people who are currently intoxicated, from possessing firearms. Further, the Court was clear to say that legislatures have powers to disarm categories of people they’ve identified as posing a special risk of misusing firearms. The decision also leaves open whether §922(g)(1) (the separate provision disarming people convicted of felonies) would be affected by this reasoning. And it doesn’t resolve whether the government could still prosecute someone under §922(g)(3) by offering individualized evidence that the person’s drug use makes them a danger to themselves or others, or evidence that a particular drug is so potent, or dangerous for some other reason, that it renders all of its users dangerous. The Court simply found that the historical record the Government put forward doesn’t support the sweeping, categorical restriction it asked the Court to uphold.

The Thomas concurrence and personal possession under the Commerce Clause

Just a quick note on Justice Thomas’ concurrence. He drew on Gonzales v. Raich (the case that expanded interstate commerce review and prevented a medical patient from growing her own medical marijuana at home under federal law) to argue that §922(g)(3) goes beyond what Congress is permitted to regulate under the Commerce Clause. The Constitution gives Congress authority to regulate commerce among the states, but as Thomas argues, based on both the original understanding of that power and the Court’s existing precedents, Congress can’t regulate someone’s possession of a firearm based solely on the fact that the gun once crossed state lines, long before that person ever possessed it. As originally intended, Thomas argues that the Commerce Clause gives Congress authority only to regulate the buying and selling of goods and services that move across state lines. It doesn’t extend to activities that have nothing to do with commercial transactions, such as simply possessing a firearm.

I mention this only to highlight that the same argument could be made to support the legality of simple marijuana possession. Marijuana markets are entirely intrastate, so applying Thomas’ rationale, a person shouldn’t be considered to violate federal law simply by possessing a controlled substance that once crossed state lines and has nothing to do with a commercial transaction. Again, I’m only talking about simple possession, not the purchase and sale of controlled substances under a state legal framework–although I think it too applies.

Conclusion

Hemani is a significant decision, not because it breaks new constitutional ground, but because it forces the Government to actually do the work Bruen demanded of it. The Government must point to history and actual show the danger. it can’t just rely on saying it’s so.

For years, 922(g)(3) operated on the assumption that drug use alone was reason enough to strip someone of a fundamental right: no hearing, no individualized findings, no historical grounding required. The Court unanimously rejected that assumption, and rightly so. A constitutional right that can be switched off by the Government, with no process and no proof of danger, isn’t much of a right at all.

Hemani doesn’t open the door to drug addicts or intoxicated individuals carrying firearms, and it doesn’t strip legislatures of all power to regulate this space. What it does is remind the Government that broad, categorical restrictions on constitutional rights require more than a plausible-sounding policy justification. They require evidence, history, and tradition, exactly the kind of evidence the Government couldn’t produce here.

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