TOPIC

The Acting Attorney General had good intentions when he moved state-legal medical marijuana into Schedule III. But it's still not clear if the way he carried this out will actually achieve what he wanted. The final rule issued in April 2026 has two major flaws.

First, the rule targeted the wrong thing. Under 21 U.S.C. § 811(d)(1), the Attorney General is allowed to reclassify a drug when it's necessary to meet U.S. obligations under international treaties. That law is written to apply to a specific drug — not 41 different state programs. But that's essentially what this rule did. Instead of simply reclassifying marijuana itself, the rule basically rescheduled individual state medical marijuana programs. That goes beyond what the law was designed to allow.

Second, the DEA overstepped into territory that belongs to the FDA. Deciding what counts as a “drug” or medicine isn't something the DEA has the expertise or authority to determine. That responsibility belongs to the FDA, and in some cases, to a United Nations commission that oversees drug policy (see 21 U.S.C. § 811(d)(2)-(4)). Because the DEA issued this rule without real collaboration with the FDA, it stepped into a role that's supposed to belong to the nation's health experts.

A better path was available. If the Attorney General had simply issued a final rule moving marijuana into Schedule III — either by finishing the process the Biden administration started, or by using his authority under 811(d)(1) — he could have then worked with Secretary Kennedy to write more detailed rules together. That kind of coordination could have allowed the FDA to build a program alongside it, one that would officially validate state-legal medical marijuana markets. As we explain in “The Fix for All Cannabis Reforms”, this same approach could work for recreational marijuana, social equity programs, and intoxicating hemp products too.

That kind of teamwork would have created a framework that was more durable and easier to defend legally. Instead, the Attorney General acted alone and without proper authority — a decision that weakened the rescheduling effort from the very beginning.