The Government Rests

Written By Shawn Collins, Founder

The testimony ended Wednesday afternoon in a hearing room at DEA headquarters in Arlington that almost nobody saw. No cameras, no audio feed, a handful of public seats. For two and a half weeks the government put on its case for moving cannabis to Schedule III, filed beside ketamine and anabolic steroids, and seven designated opponents put on theirs. Everything the rest of us know about those days arrived secondhand, through the accounts of the people in the seats, the filings the parties made, and the reporting of a small press corps working the hallway. The evidence is in. The arguing over what it proves comes next.

A hearing like this produces one very important thing that outlasts everything said about it: a record. Every question asked in that room, every answer given, every exhibit admitted is now fixed in a transcript that a recommended decision, an administrator's final rule, and almost certainly a panel of federal appellate judges will work from for years to come. Nobody outside the room has read that transcript yet, including anyone (read: me) writing about the hearing this morning. So the useful work now is assembling the file from what the seats and the filings let out: what made it into the record, what stayed out, and who has to live with both. The effort to reschedule needs no defending; patients settled the medical question years before their government conceded it. What's left, therefore, is execution and implementation. Whether an administration and agency this practiced at getting sued can finish what they started without handing the appellate courts a reason to undo it, and what happens to the people downstream while everyone waits.

What the government put in the record

Start with the case the government actually made, because it deserves more attention than it got. The Drug Enforcement Administration brought two witnesses. Dr. Dominic Chiapperino, who directs the controlled substance staff at FDA's Center for Drug Evaluation and Research, walked the tribunal through the scientific and medical review behind the Schedule III recommendation: the abuse-potential analysis, the medical-use determination, the methodology that got HHS to yes. Dr. Corey Burchman, an anesthesiologist and pain specialist who spent years at Dartmouth-Hitchcock, testified from clinical practice about moving patients off opioids and onto cannabis, and about the relative risk profiles of the two. On opening day, the government put cannabis's relative safety against alcohol and opioids squarely on the record.

“Fifty years of institutional position, reversed in a morning, methodically, on the record. Whatever else this process produces, that testimony exists now, and no future administration gets to pretend it doesn’t. Try as they might.”

Don't skim past that. The agency whose founding statute says cannabis has no accepted medical use put a federal scientist and a pain physician under oath to say the opposite, and opened by comparing the plant favorably to alcohol. Fifty years of institutional position, reversed in a morning, methodically, on the record. Whatever else this process produces, that testimony exists now, and no future administration gets to pretend it doesn't. Try as they might.

The government also established a critical baseline right out of the gate. This proceeding, its lawyers said from the first hour, is about where one substance sits in a statute, and nothing else. Legalization and adult-use consumption were outside the room before the first witness sat down. The April order that moved FDA-approved products and qualifying state-licensed medical cannabis into Schedule III was treated as finished business. Everything else stayed outside the scope, and therefore outside the courtroom: the entire adult-use economy, still in Schedule I this morning, and the social equity agenda so many have pressed for, which no scheduling docket was built to deliver.

What the opposition put in the record

The seven designated participants all came to oppose the rule, and by the end of two and a half weeks their case had done something I have rarely seen a litigation strategy manage. It argued against itself in public.

The strangest testimony came from inside the government itself. Dr. Luli Akinfiresoye is a pharmacologist in DEA's own Drug and Chemical Evaluation Section and the author of the agency's 2024 scientific review of marijuana. Smart Approaches to Marijuana (SAM) subpoenaed her. Because of course they did. Her own agency resisted that subpoena and sent a letter limiting what she could say. Chief Administrative Law Judge Derek Julius overruled parts of the restriction. So a DEA scientist took the stand at DEA headquarters, called by the opposition, and testified that cannabis fails the older five-part test for accepted medical use and that state medical programs are a primary source of diversion. The government declined to cross-examine her. Its position is that the standard she applied no longer governs, which makes her testimony material for an appellate brief rather than for the tribunal. Administrative theater, basically, except that the theater is now in the record, and the D.C. Circuit will read it.

Then there was Dr. Bertha Madras, the Harvard psychobiologist who has anchored the scientific case for prohibition for two decades. She testified for SAM that dispensary products lack the consistency and validated dosing of pharmaceutical medicine, her long-standing position and a serious one. The government's lawyers cross-examined her for roughly five minutes, and by two accounts, including one from a correspondent inside the room, she acknowledged that cannabis meets the statutory criteria for Schedule III. The transcript will memorialize the exact words, and we're eager to read them. The exchange as reported, though, has the opposition's marquee scientific witness agreeing under oath with the legal conclusion she came to fight, and the five-part medical-use test she has defended for years belongs to a framework the government now calls superseded.

The opposition closed with the states. Nebraska, Idaho, and Indiana presented Yale's Dr. Deepak Cyril D'Souza on the science and Humboldt County Sheriff William Honsal on enforcement, a California lawman recruited to testify against a policy his own state's voters settled a decade ago. Louisiana had been the coalition's fourth member until it withdrew four days before opening statements, no reason given, the only state in the group whose own residents can legally buy the plant. The remaining coalition's argument is the one you'd expect: diversion, potency, youth exposure, the costs of normalization. Those concerns are real, and I take them seriously as governance and implementation problems. What the two and a half weeks never produced was a witness who could explain why keeping cannabis in Schedule I, next to heroin, is the remedy for any of them. Decades of Schedule I enforcement did not prevent the potency they decry or the products they fear. The enforcement regime failed on its own terms. That absence in their case is as much a part of the record as anything said aloud.

“What the two and a half weeks never produced was a witness who could explain why keeping cannabis in Schedule I, next to heroin, is the remedy for any of them.”

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What never made it into the record

Hold two thoughts at once here, because both are true.

The first: the hearing was lawfully constituted. The standing rules for these proceedings are narrow, the agency applied them, and an administrative hearing is a fact-finding instrument as opposed to a referendum. The government was the proponent here, its rule, its evidence, its burden, and standing law obligates the tribunal to hear from those who claim the rule will injure them. That's who objection proceedings exist for, and it's why all seven designated participants came to oppose. The organizations turned away from the reform side, the Drug Policy Alliance, NORML, the Marijuana Policy Project, sought seats at a table built for objectors; their interest runs with the proponent's, and the proponent speaks for itself. I spent enough years running one of these processes to have no patience for treating procedure as conspiracy.

The second: the design carries a consequence worth staring at. If the government is the only proponent, the reform case in the record is exactly as broad as the government chose to make it, and the government traveled light. Two witnesses, institutional and clinical. No patient. No state regulator. No operator. Cat Packer, who stood outside the Arlington headquarters at 7:15 on opening morning to claim one of the handful of public seats, documented the result in her account for Marijuana Moment: across the days she attended, no discussion of the harms of criminalization itself. No arrests, no convictions, no collateral consequences, no racial disparities in enforcement. Cat ran cannabis regulation for the City of Los Angeles, and our time as regulators overlapped. She’s a bona fide expert who I leaned on extensively. Her accounting of what the room never mentioned is exact. Her conclusion was that the record reflects a narrower range of perspectives than the policy question deserves. Here is where we part ways. The statute hands Judge Julius a narrow question, abuse potential and accepted medical use and dependence liability. A scheduling docket cannot expunge a conviction or repair a neighborhood any more than it can issue a business license. The harms Cat catalogued are real, but they are assigned to other rooms: Congress, sentencing commissions, the state legislatures that wrote the criminal codes in the first place. Asking this proceeding to carry that history misreads the proceeding, and the history deserves a venue with the power to act on it. That doesn’t make the topics any less important, and that context sits heavy above these proceedings for the policymakers and politicians monitoring it.

That thinness lands hardest on the people the rule governs. Nobody testified about the budtender whose job depends on which schedule her inventory sits in. Nobody testified about the family that signed a personal guarantee on a cultivation loan in a state that told them they were legitimate. By the industry's own measure, a June survey from Vangst and Whitney Economics, state-licensed businesses employed 412,500 people at the start of this year. Both firms sell services to the sector, so read that as the industry counting itself. No federal agency counts these jobs at all, which is its own kind of silence in the file. If you work in this industry, the entire affirmative case for the reform you depend on was written by government lawyers who don't work for you. They did their job. Nobody in that room had the job of knowing what your life looks like.

Where the file goes now

The procedure from here is short to describe and long to live through. The parties file proposed findings and post-hearing briefs. Judge Julius issues a recommended decision on his own clock, because no statute sets him a deadline. The parties then get twenty days to file exceptions. The full record lands on the DEA administrator's desk, and the administrator makes the final call. If every stage moves briskly, a final rule is conceivable around the turn of the year. Bureaucracy isn’t exactly brisk, though.

Has the government ever run this play before? Once, start to finish. In 1988, after two years of hearings on a petition NORML had filed in 1972, DEA Chief ALJ Francis Young recommended moving cannabis to Schedule II and called it "one of the safest therapeutically active substances known to man." Administrator John Lawn rejected the recommendation the following year. The D.C. Circuit sent the agency back once to explain itself, and in 1994 the court upheld the rejection under the substantial evidence standard. Twenty-two years passed between the petition and the final ruling, and the judge who read the record most closely lost to the administrator who signed the order. Two lessons sit in that history. A recommended decision is advice, which administrators have rejected before, in the cannabis case and in the MDMA proceeding where the same Judge Young recommended Schedule III and Lawn chose Schedule I anyway. And under Universal Camera, the 1951 Supreme Court decision that still governs how appellate panels read records like this one, whatever Julius writes becomes a permanent fixture of the file, the way a second opinion gets stapled into a patient's chart whether or not the treating physician likes it. An administrator who overrides his own hearing officer must explain the departure to judges required to weigh the officer's findings against the agency's conclusion. Amongst a regulator’s least favorite phrases? Arbitrary and capricious.

“The appeal is where Dr. Akinfiresoye’s testimony gets its intended use, where the Dr. Madras cross gets read against the transcript, and where the question I keep returning to gets answered: whether a decision built this fast can survive the scrutiny it was built to invite.”

And then the real venue. Both sides spent two and a half weeks building this record for the D.C. Circuit, where April's medical order is already under challenge and where any final rule will follow it. The merits question waiting there is older than most of the litigants: a 1977 D.C. Circuit ruling read the Single Convention to bar cannabis from any schedule below II unless supplemental controls close the gap, and the government's answer is a 2024 Office of Legal Counsel opinion holding that its regulations do exactly that. No court has ever tested the theory. This appeal absolutely will. The Justice Department's recent filing in that litigation told you everything about the posture: it called out the drug-testing industry and a pharmaceutical company for the "pocketbook interests" behind their opposition. Two medical cannabis companies have moved to intervene on the government's side. The appeal is where Dr. Akinfiresoye's testimony gets its intended use, where the Dr. Madras cross gets read against the transcript, and where the question I keep returning to gets answered: whether a decision built this fast can survive the scrutiny it was built to invite.

What to do while the briefs get written

If you operate in this industry, the closed record changes your homework.

Read the transcript when it posts. DEA committed in writing, in the same press release that barred cameras from the room, to publishing a corrected version on its website once the proceedings wrap. No date came with the promise, of course. Your lawyer will probably bill you for a summary; the primary document is better and cheaper, and the Dr. Madras cross alone is worth checking. Then watch the twenty days after the recommended decision lands. The exceptions window will be the loudest stretch of this process.

Keep your 280E discipline while the noise plays out. Schedule III remains a headline with a compliance hangover: medical operators can finally book the relief, adult-use operators cannot, and a lender who sees rescheduling baked into your projections has every reason to ask which side of that line you live on. Model the relief. Leave it out of the deck.

The registration question has already answered itself. The expedited window that opened with the April order closed last month, and the operators who filed bought themselves the right to keep operating while DEA reviews their applications. They also put their business on federal paper for the first time, which is the part that outlasts the safe harbor. If your license touches both medical and adult-use, the segregation between the two, inventory, facilities, accounts, now carries federal weight. It marks the line between the activity you registered and the activity that remains a federal crime, and you drew that line yourself, in writing.

If you were one of the voices without a seat, the design handed you an assignment. The evidentiary record is closed, but the appellate record and the congressional one are wide open. Amicus briefs get read. So do the two dozen state regulatory frameworks that the hearing never examined, which remain the best evidence in the country that regulated cannabis is a governable product. The states wrote that record over the last decade-plus. Someone should hand it to the judges, since the hearings ignored it.

The government has rested. So has the opposition, in both senses of the word. What remains is a closed file, a judge with no deadline, an administrator with a choice, and a few hundred thousand people stocking shelves and signing guarantees while the briefs get written. The reversal of fifty years of federal position is in the record now, under oath, and no one can take it back out. Whether it survives the courts that were its real audience is the next chapter. The people who built this industry did their part - are actively doing their part - without a hearing. The least the process can do is finish.

Links and Resources:

Agency Actions & Filings

Historical & Legal Authorities

  • In the Matter of Marijuana Rescheduling Petition, DEA Docket No. 86-22, Opinion and Recommended Ruling of ALJ Francis L. Young (Sept. 6, 1988); final order rejecting recommendation at 54 Fed. Reg. 53,767 (Dec. 29, 1989).

  • Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994).

  • NORML v. DEA, 559 F.2d 735 (D.C. Cir. 1977).

  • Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

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Shawn Collins, Founder

Shawn Collins was the inaugural Executive Director of the Massachusetts Cannabis Control Commission. Before that: the State Senate and the Treasurer's office. Now he advises operators, investors, and regulators on cannabis, alcohol, health care, and AI policy. He writes Policy, Decoded — weekday mornings plus a Sunday editorial.

https://bio.site/thcgroup
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The Government Takes The Stand