Marijuana Moment: Why DEA’s Marijuana Rescheduling Proposal May Be DOA Under The Trump Administration (Op-Ed)

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“Trump himself has never called for relaxing federal controls on adult-use marijuana.”

By Robert A. Mikos, Vanderbilt University Law School

Last month, the Drug Enforcement Administration (DEA) wrapped up hearings on a long-delayed Biden Administration proposal to reschedule all marijuana under the Controlled Substances Act (CSA). The agency’s proposed rule would move the drug from Schedule I, the most tightly controlled, to Schedule III, alongside drugs like ketamine.

The proposal now under review by an administrative law judge is much broader than the rescheduling action then-Acting Attorney General Todd Blanche took earlier this spring. In April, Blanche issued an order immediately moving all state-licensed medical marijuana to Schedule III. (He claimed the CSA’s treaty exception clause empowered him to bypass the statute’s cumbersome rulemaking standards and procedures which the DEA is now following.)

But unlike the rescheduling rule DEA is currently considering, Blanche’s rescheduling order applied only to medical marijuana. It left all non-medical marijuana, including state-licensed recreational (i.e., adult-use) marijuana, on Schedule I.

Adult-use marijuana is ascendant in the 24 states that have legalized both medical and recreational marijuana. In Colorado, for example, adult-use marijuana accounted for nearly 90 percent of the state’s $1.3 billion marijuana market in 2025, up from 66 percent a decade earlier. Hence, the lion’s share of the state-licensed marijuana industry and its customers will reap no benefit from rescheduling unless and until the DEA finalizes the Biden rule.

But there are several reasons to suspect that the Trump administration DEA will not follow through with that broader rule.

First, Trump himself has never called for relaxing federal controls on adult-use marijuana. While he did press the attorney general to reschedule medical marijuana back in December 2025, likely prompting Blanche’s April order, the president has issued no similar exhortation to reschedule adult-use marijuana.

Furthermore, many senior Republican leaders oppose rescheduling any marijuana. DEA thus faces no pressure from the president or his allies to go beyond what the attorney general has already done.

Second, if the Trump administration really wanted to reschedule adult-use marijuana, it could have done so already.

Blanche gave no plausible legal reason for limiting his April rescheduling order to medical marijuana. He claimed his hands were tied because, in his view, international drug control treaties require the United States to prohibit the non-medical use of marijuana. But this excuse is specious, because producing, distributing and possessing controlled substances for non-medical purposes is prohibited irrespective of where they are scheduled.

Rescheduling would confer some limited benefits on suppliers and consumers of adult-use marijuana, but it would not legalize any non-medical use of the drug. For example, ketamine is on Schedule III, but as the tragic Matthew Perry case illustrates, distributing that drug for non-medical purposes remains a serious federal crime.

In similar fashion, the production, distribution and possession of marijuana outside of legitimate medical channels would have remained criminal under the CSA even if Blanche had moved all marijuana onto Schedule III in his order.

Indeed, just two years ago, the Office of Legal Counsel (OLC), “the attorney general’s lawyer,” concluded that the United States could reschedule all marijuana, not just medical, without violating any of our obligations under drug control treaties. While Blanche cited the OLC opinion favorably in his April order, he gave no reason for rejecting OLC’s conclusion that rescheduling adult-use marijuana would also be lawful.

Blanche’s failure to explain the limitation he imposed suggests that he (or Trump) did not want to reschedule adult-use marijuana in the first instance. Blanche’s supposed deference to drug control treaties appears all the more disingenuous, given Trump’s generally dismissive attitude toward international law.

Third, if international law really does bar the attorney general from rescheduling adult-use marijuana, then it would bar DEA from doing so as well. In the past, DEA has insisted it could not move marijuana (even medical) below Schedule II or possibly even Schedule I, because doing so would violate the same treaty obligations Blanche invoked in his recent order. Although OLC tried to put this excuse to rest in 2024, Blanche has seemingly revived it, at least as applied to adult-use marijuana. In so doing, he likely signed the death warrant for DEA’s current proposal to broaden the scope of his narrow rescheduling order.

In short, DEA’s proposal to reschedule all marijuana may never become law under the current administration.

The Trump administration has shown little support for adult-use marijuana in the past, and Trump’s new attorney general–who has final say over all DEA decisions—has told the agency, in effect, that it may go no further than what he has already done: reschedule only medical marijuana.

Even though the DEA went through the motion of holding hearings on its proposal—and appears to have defended rescheduling against some other attacks—there is no guarantee the agency or its boss (Blanche) will ever adopt the Biden-era proposal.

Robert A. Mikos is the LaRoche Family Chair in Law at Vanderbilt University Law School and is the author of the casebook Marijuana Law, Policy and Authority.

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