Marijuana Moment: Reports of Marijuana Rescheduling’s Chevron-Related Death Are Greatly Exaggerated (Op-Ed)

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“I remain confident that Schedule III will happen and that it will survive judicial review under Loper Bright just as surely as it would have under Chevron.”

By Shane Pennington, Porter, Wright, Morris, and Arthur LLP

A few days ago, in a case called Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the Chevron deference doctrine—the command from a 1984 decision that courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Since then, folks have been coming out of the woodwork predicting that Chevron’s demise signals the demise of the push to move cannabis to Schedule III as well.

Those takes may be hot, but, as I’ll explain, they’re also dead wrong. Before I do, though, a warning: most people find the subject matter here—administrative law—extremely difficult and boring. As Justice Scalia put it in the preface to a speech he delivered on this same subject at Duke Law School decades ago:

“Administrative law is not for sissies-so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards.”

With all the bold claims that Loper Bright will derail rescheduling, you might think one of the “experts” touting that view would explain why they believe it. The fact that none has is unsurprising, however. Dig into the details, and it becomes clear that Schedule III’s fate is in no way bound up with Chevron’s.

While Chevron was a landmark Supreme Court opinion, it applied only to certain issues in federal court challenges to administrative agency decisions—namely, those that turned on a federal agency’s interpretation of ambiguous statutory language. In that narrow class of cases, Chevron required courts to defer to certain reasonable agency interpretations. Loper Bright rejects that approach and requires judges to bring their own independent judgement to bear when addressing issues of statutory construction in the agency context.

The Court made clear, however, that while an agency’s interpretation may not be binding on federal judges, it does still matter. That is especially so in cases where, for example, Congress expressly delegated authority to the agency to give meaning to a particular broadly worded term and/or the agency’s interpretation is longstanding and consistently held. In those circumstances—and others the Court discussed at some length—the agency’s interpretation is still entitled to a great deal of respect.

In the cannabis rescheduling context, there are two key questions of statutory interpretation in play: the validity of (1) The Department of Health and Human Services’s (HHS) interpretation of the term “currently accepted medical use in treatment in the United States” and (2) the Drug Enforcement Administration (DEA) and DOJ’s interpretation of the statute’s treaty provisions and the Single Convention treaty to permit the transfer of substances subject to the Single Convention to Schedules III, IV, or V.

If Chevron’s demise will impact the process, it must be because of its influence on one or both of those questions. As I’ll explain, however, Loper Bright doesn’t change the analysis on either one.

Start with HHS’s interpretation of “currently accepted medical use.” In a 2005 case called Gonzales v. Oregon, the Supreme Court emphasized that Congress expressly delegated special authority to interpret that term to HHS. Under Loper Bright, that means HHS’s views on the “currently accepted medical use” issue will continue to command significant respect from a reviewing court even post-Chevron. Perhaps more importantly, though, DOJ’s Office of Legal Counsel has also weighed in on this issue, affirmed the general viability of HHS’s interpretation, and directed DEA to afford it “significant deference.” OLC’s directives are binding on DEA.

Thus, even without Chevron, DEA itself will be required to give great weight to HHS’s view. In light of all that, when it comes to the “currently accepted medical use” question, Loper Bright simply doesn’t move the needle.

As for the treaty provision, courts have repeatedly held that when a question involves issues of treaty compliance, courts must give significant deference to the views of the Executive Branch for reasons entirely independent of Chevron. That treaty-specific doctrine will continue to apply post-Chevron, meaning courts will give DOJ’s and OLC’s thorough analysis of the treaty issue at least as much deference as they would have if Chevron still applied.

Finally, in cases I’ve litigated against DEA recently, the government often didn’t even attempt to claim Chevron deference in the first place.

Over the years, courts, including the U.S. Supreme Court had chipped away at Chevron, making more and more exceptions to its general rule. Many of those exceptions squarely covered DEA interpretations of the CSA provisions dealing with rescheduling. Put simply, while the Court may have finally overruled Chevron just a few days ago, the writing has been on the wall for a long, long time.

Agencies like DEA were already getting the message. As a result, they have been invoking Chevron less and less over time anyway, thus diminishing its influence over issues like the ones in play in the cannabis rescheduling process. For the reasons I’ve explained here, whatever influence Chevron might have had on these questions would not have changed the rescheduling analysis one bit.

The administrative process under way to reschedule cannabis is historic both because of its importance to the public and because of the extraordinary thoroughness of the multi-agency effort from the federal government to get it right. No scheduling process in U.S. history has been so painstakingly vetted and procedurally buttoned up at such an early stage.

Even more importantly, the federal government’s conclusions and proposals so far are unimpeachable on the merits. As a result, I remain confident that Schedule III will happen and that it will survive judicial review under Loper Bright just as surely as it would have under Chevron.

Shane Pennington is a partner the Washington, D.C. office of Porter, Wright, Morris, and Arthur LLP. He is a federal administrative law specialist whose practice focuses on solving regulatory problems at the agency level and in federal courts across the country.

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