In June of this year, the Supreme Court’s ruling on Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce effectively resulted in the overturning of the famous “Chevron” decision, a 40+ year old precedent that has proven foundational to the modern exercise of administrative power. At its core, the 1984 Chevron ruling held that in instances of ambiguous or unclear statute, courts were required to defer to government agencies’ expert interpretation of such statute. After this year’s ruling, federal agencies now face an eroded power structure, and the interpretation and implementation of less-than-clear laws now lies in the hands of the judiciary.
While philosophical and partisan debate is rampant with this decision—primarily around the idea of the “administrative state” and its role in government—it is undebatable that this decision has upended a particularly sensitive area of law. The Chevron decision formed a foundational pillar in deference to administrative expertise and regulatory powers in sectors such as healthcare and pharmaceuticals, environmental regulation, and finance. So, what does this decision mean for cannabis, vis-à-vis the new power dynamic being applied to the Drug Enforcement Administration (DEA), among others? While pundits, attorneys, and judicial watchdogs across the country have certainly voiced their interpretations and predictions, we ultimately don’t know for certain what this decision means for existing and future cannabis law (and the DEA more broadly) until certain claims are addressed in court. With that said, there’s one result that can be stated with confidence: cannabis rescheduling just got a lot more interesting.
Legal challenges to the rescheduling process initiated by the Biden administration were incredibly likely from the onset, but with the death of Chevron, that likelihood became a certainty. Potential lawsuits seeking to disrupt the reclassification of cannabis, primarily through procedural challenges, now have another arrow in their quiver: claims that the very power of the DEA to place substances in appropriate schedules under the Controlled Substances Act (CSA) is now up for reassessment. Litigation is likely already being prepared to assert that the CSA was broad and relatively non-descript in its granting of substance scheduling power to the DEA, and that the judicial system is now best suited to weigh in on the scientific merits of scheduling decisions. Depending on the particular case, and even more dependent on the judge(s) hearing it: this could theoretically result in one of at least two dramatic possibilities:
- A court finds that the DEA “missed” some science in its move to reclassify cannabis as Schedule III, and that the judiciary has cause and evidence to maintain cannabis as a Schedule I substance in perpetuity, OR
- The judiciary finds that the DEA has overplayed its hand in filling in the statutory gaps around drug regulation and classification more broadly, and substances classified under the CSA now warrant additional investigation. While this is what some may call the “nuclear option”, it could result in a range of unpredictable possibilities—including drastic rescheduling and even de-scheduling decisions being taken by a court, for cannabis and a variety of other substances.
Ultimately, the suite of potential outcomes that exist in any post-Chevron challenge to cannabis rescheduling is uncertain at best. While highly dependent on judiciary interest and the particular partisanship of presiding judges, one unfortunate thing is clear for the cannabis industries spreading across the country: certainty and stability isn’t coming anytime soon. Buckle up.
