Another step toward marijuana legalization

Today's rescheduling moves from DOJ follow key action from the Biden administration that made Acting A.G. Blanche's moves possible. And: The latest with Virginia redistricting.

President Donald Trump has apparently pushed the Justice Department and Drug Enforcement Administration another step closer to marijuana legalization. Although the Trump administration deserves credit for the move, peeking under the surface, it is clear that several key steps leading to Thursday’s developments were actions taken by the Biden administration.

Legalization itself would have to come through Congress, but the executive-side effort has been to reschedule marijuana from a Schedule I to Schedule III drug. Schedule I drugs are defined by the DEA as having “no currently accepted medical use and a high potential for abuse,“ whereas Schedule III drugs “with a moderate to low potential for physical and psychological dependence“ that do have accepted medical uses.

On Thursday, DOJ issued two documents from Acting Attorney General Todd Blanche moving that process forward: an order, effective immediately, rescheduling state-licensed medical marijuana and medical marijuana products as a Schedule III drug and a notice that a hearing regarding rescheduling marijuana more broadly would be held beginning June 29.

Here’s the key paragraph from Blanche’s 33-page order:

Noted in that paragraph are two key underlying pieces of Thursday’s move: a 2023 U.S. Department of Health and Human Services recommendation supporting rescheduling and report providing the basis for that recommendation and a subsequent 2024 Justice Department Office of Legal Counsel opinion addressing issues involved in the potential rescheduling.

The efforts were spearheaded and signed by two Biden appointees. The HHS recommendation was from Dr. Rachel Levine, the assistant secretary of health.

As Blanche wrote in Tuesday’s order, after spending five pages detailing and citing to the HHS report, he decided to “exercise [his] discretion in determining the most appropriate schedule by choosing the option that most closely aligns to HHS’s findings.“

Levine’s expertise, deferred to on Thursday, has regularly been the topic of criticism from the right. A trans woman, Levine had acted in her role to advance and support the provision of gender-affirming medical care, including for minors.

Nonetheless, her opinion was the basis for Blanche’s choice on Thursday, backed up as it was by the OLC opinion, which was from another Biden appointee, Christopher Fonzone, assistant attorney general for OLC.

Those moves, in turn, had been prompted by actions from then-president Joe Biden in 2022 — specifically asking DOJ and HHS “to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.“

Trump continued those efforts with his own executive order this past December, which he followed up on in the Oval Office just last week.

Given Trump’s repeated focus on this, one sentence stood out in the hearing notice: “DEA is committed to accelerating the rulemaking process from this point forward.“

---

One of the biggest consequences of the medical marijuana rescheduling order outside of the rescheduling itself is the “tax implications” for affected businesses:

Additionally, it should be noted that Thursday’s order — even within medicinal marijuana use — does not change the scheduling of synthetic THC. That “remains in schedule I.”

As for the broader rescheduling question, it will be subject to a multi-day hearing that will begin on June 29 in Arlington, Virginia and could continue through July 15, per the notice.

Among the items of note: There will be a recess on July 4 and 5 “[t]o allow all parties to celebrate 250 years of American independence,“ and the hearing can be moved elsewhere “without notice” aside from the administrative law judge announcing the move at the hearing itself.

This will, of course, lead to a still-longer process before any broad rescheduling happens. And that is not legalization. But it is a notable step and a rare area where the government has moved in the same direction consistently over the past five years.

While Trump is eager to avoid crediting — and often aimed at obliterating — Biden’s accomplishments, this is one area where what is happening now is a continuation of and next step in an action that Biden’s administration began.

---

Virginia: What’s next?

Virginia voters sided with a Democratic-advanced mid-decade redistricting on Tuesday, leading to Republican apoplexy. Steve Morris covered what issues the results raise for Democrats in his The Long Run newsletter:

The legal efforts from Republicans to stop the redistricting — which began before the vote — are continuing, leading to a Wednesday order from Tazewell County Circuit Court Judge Jack Hurley blocking certification of Tuesday’s election for now.

This week’s order out of Tazewell County — population 40,000 and located in northwest Virginia — is one of several lawsuits challenging the referendum that is pending, including some already at the Virginia Supreme Court.

As WJLA ABC7 reported, “The Virginia Supreme Court overruled two previous orders from the circuit court to block the referendum vote. The state’s highest court is still expected to hear those cases.“

Ultimately, the Virginia Supreme Court is expected to consider these disputes and issue a final ruling (or rulings) in short order — although Republicans have suggested they might take that ruling to the U.S. Supreme Court.

I think it’s an extremely uphill battle — tossing out clear election results sounds exceptionally unlikely — but nothing should be ruled out until it’s a done deal in 2026.