S. 2909 — which is sponsored by U.S. Senators Cynthia Lummis (R-WY) and Steve Daines (R-MT) — is wrong-headed and should be opposed. The bill says that only Congress should have the ability to move marijuana up and down the five schedules.
In 1970, when Congress and President Richard M. Nixon created the current-day Controlled Substances Act, it was established that Congress has ultimate authority over the scheduling of drugs. In that same law, Congress delegated its authority to DOJ, which delegates to DEA, as specified in the Code of Federal Regulations.
In those DEA regulations, it says that DEA must seek input from HHS, but DEA doesn’t need to follow HHS’s recommendations. And, in fact, DEA doesn’t need to follow the recommendation of its own Administrative Law Judge(s).
So two problems: First, the senators’ rhetoric implies that Biden’s team is abusing its authority, similar to the executive action to forgive student loans; but Biden’s team is actually following the instructions that Congress gave it in 1970. Second, if Congress wants to keep its authority but eliminate the DOJ/DEA authority, Congress can certainly do that, but why? It would mean Congress would need to play a role in drug-scheduling decisions, while at the same time not being able to pass 11 of the 12 annual appropriations bills.
If U.S. Senate Majority Leader Charles Schumer (D-NY) decides to roll banking reform, rescheduling, expungements, and gun rights into one bill, that would be huge — lots of marijuana reforms without plunging into federal taxation (yet).