A document viewed by Filter indicates that the Department of Justice will formally request an extension of a court-ordered “stay” of a legal challenge to marijuana rescheduling proceedings until at least January 27, 2026.
That timeline would be far longer than the one suggested by President Donald Trump, who said in August that a decision on whether to move cannabis from Schedule I of the Controlled Substances Act to the less-restrictive Schedule III could be reached within weeks.
The DOJ is set to file its latest joint status report for the rescheduling process on September 29, when it will make the request.
Procedurally, the request isn’t exactly unexpected; rescheduling proceedings have been “stayed” since January 16. That’s due in part to a lawsuit filed against the DOJ by David Heldreth, a researcher and CEO of Panacea Plant Sciences.
Heldreth’s suit hinges on his claim that rescheduling proceedings thus far have been in violation of the DOJ’s 2022 memorandum about consulting Indigenous tribal governments on policy changes that directly affect Indigenous nations.
In a leaked draft of a joint status report to be filed on September 29 in the United States District court for Western District of Washington, DOJ Trial Attorney Elizabeth Neylen writes that, “because the administrative proceedings remain stayed, the parties respectfully submit that the stay continues to be warranted.”
Regarding timing, the document suggests that, “to avoid conflicts around the holidays, the parties further propose to submit another joint status report on whether the stay continues to be warranted in the next 120 days, by January 27, 2026.”
“The DEA still refuses to hold tribal consultation despite my offers to settle the case if they would.”
Heldreth—who lodged a similar, ultimately unsuccessful legal challenge to halt the Drug Enforcement Administration’s efforts to schedule two psychedelic compounds known as DOI and DOC in 2024—expressed satisfaction at the latest development while saying that a settlement offer remains “on the table.”
“I’m glad the case remains stayed and the rescheduling [is] delayed,” Heldreth told Filter. “While [I’m] not against the legalization/descheduling of marijuana, the rescheduling process has been deeply flawed in execution and legality.”
He said that former President Joe Biden and US Attorney General Merrick Garland “violated tribal consultation regulations and DOJ/DEA policies to rush it through before he left office. Now with Biden gone, the DEA still refuses to hold tribal consultation despite my offers to settle the case if they would.”
Many drug policy reform advocates won’t welcome yet another delay to a rescheduling process that Biden announced in October 2022, but which has been mired in various disputes and allegations of improper behavior by the DEA.
“There is no good reason to further delay this change that the public—from both sides of the aisle—has supported for so long.”
Attorney Shane Pennington is one of the legal minds behind the marijuana rescheduling campaign, as well as co-counsel for a recently-advanced psilocybin rescheduling attempt.
“There is no good reason to further delay this change that the scientific and medical evidence has compelled and that the public—from both sides of the aisle—has supported for so long,” Pennington told Filter.
Multiple other factors complicate the historic rescheduling effort, which would have impacts including reduced federal restrictions on cannabis business and research—though it would fall far short of legalization, and would not end criminalization of people who use cannabis.
For example, the summer retirements of DEA Administrative Law Judge (ALJ) Paul Soeffing and Chief Administrative Law Judge John J. Mulrooney II have left the DEA without any Administrative Law Judges on the payroll.
Meanwhile, Senator Bernie Moreno (R-Ohio) recently hinted to reporter Matt Lazlo of a possible White House attempt to circumvent the formal rescheduling process via executive order.
Even assuming that Trump wanted to do this, some legal experts have expressed doubts about the constitutionality of such a move, and whether it would hold up if challenged in federal court.
“If we accept the president can unilaterally reschedule, we have to worry they could also unilaterally schedule any substance. We need to hold the executive branch accountable to complying with the law.”
Attorney Robert Rush, who served as co-counsel for a legal challenge by Students for Sensible Drug Policy and Dr. Raul Ramos against the DOI and DOC scheduling proceedings, told Filter that, “from my legal perspective it concerns me because if a president can unilaterally reschedule cannabis via executive order, it sets a very dangerous precedent.”
“Basically,” he continued, “the president would be allowed to ignore the explicit language of the law in the Administrative Procedures Act and the Controlled Substances Act to redefine what’s legal or illegal.”
“If we accept the president can unilaterally reschedule,” Rush concluded, “we have to worry they could also unilaterally schedule any substance.”
“We need to look beyond just the cannabis issue and consider the dangers of unlimited executive power and the broader implications for our nation. We need to hold the executive branch accountable to complying with the law, for without that, we no longer have a democracy.”
Photograph by Elsa Olofsson via Flickr/Creative Commons 2.0