Even though on Nov. 5, 2024, Nebraska became the 15th state to legalize exclusively medical marijuana, and despite the fact that 24 other states have legalized dual adult- and medical-use cannabis—none of that has changed the fact that cannabis use and sale remains a federal offense. From smoking, vaping or ingesting alone or at a party to growing, transporting, or providing to another—for money or for free—all amount to federally criminal activity.
Simple marijuana possession, typically personal usage without a federally recognized prescription or without federal authorization, is a federal criminal offense in violation of 21 United States Code 844. And when marijuana is possessed “with intent to distribute” or when it is actually distributed, manufactured, cultivated, sold, or transferred—that too is a federal crime in violation of 21 United States Code section 841(a).
Those convicted of such offenses can face federal prison time, with the length of the custody sentence based on the amount of the substance involved in the transaction. For example, someone who possesses 100 marijuana plants of any size (but less than 1,000 plants) faces a mandatory minimum sentence of five years of imprisonment without parole.
Plus, most surprising to many who use or who are in the industry, federal drug offenses base the severity of penalties not on the weight of the pure substance, but rather on the weight of the whole mixture or substance containing a detectable amount of the federally illegal substance. This means that if someone possesses marijuana cut with filler (like oregano), the prison time is based on the combined weight of the drug and the filler.
No physician practicing medicine in the United States, who has a DEA license to prescribe medication, can prescribe marijuana. If they do, they risk reprisals against their DEA licenses to prescribe narcotics. This is why in states that have legalized medical marijuana, those physicians issue “recommendations” for patients to use the substance. These physicians and the marijuana-legal states make clear that medical marijuana can be used by a patient if the patient has a “recommendation” from a physician. This leaves almost any person in possession of marijuana to face possible federal criminal exposure.
Even those who use medical marijuana in jurisdictions that have legalized medical marijuana are at risk of federal prosecution. The United States Supreme Court in the case, Gonzales v. Raich, 545 U.S. 1 (2005), ruled that Congress acted constitutionally when it criminalized drug (marijuana) use and that even if someone used home-grown marijuana for medical reasons, in a medically legal state, the participants to the transaction could face federal criminal exposure.
In the Gonzales v. Raich case, the DEA seized home-grown marijuana from medical users under the care of a physician in a medically legal state. A group of medical users sued the federal government (the DEA and the U.S. attorney general of the United States) arguing that Congress could only constitutionally regulate commerce between the states and that growing medical marijuana for use in a single state was not something that the federal government (Congress) could regulate and criminalize. The high court, in a 6-3 opinion, held that Congress has the constitutional authority, despite state law to the contrary, to regulate and prohibit the cultivation and use of marijuana.
Backstory: Cannabis has been federally illegal for over 50 years, since the passage of the CSA.
Marijuana has been federally illegal for over 50 years. The criminalization of marijuana by federal authorities is a result of President Richard Nixon’s signature drug legislation, the Comprehensive Drug Abuse Prevention and Control Act of 1970 of which Article II is titled as the Controlled Substances Act (CSA).
The CSA classified all federally “controlled” substances into five categories, identified as schedules I, II, III, IV, and V.
Schedule I substances are deemed the most harmful and addictive; they include heroin, LSD, peyote and marijuana. Possession—medically or otherwise—is (in almost all instances except grandfathered-in marijuana using glaucoma patientsand the few permitted federal research permits) prohibited under federal law.
Schedules II through V concern a range of medications (see Werner-Simon Scheduling chart below) from those that are highly addictive but with a currently accepted medical use in Schedule II to Schedule V-type medication, specifically substances, like diarrhea medication, with the lowest risk of physical and psychological dependency.
President Nixon’s campaign against marijuana use, and its placement in the CSA as a Schedule I illegal drug, was based, in large measure, on who the then-president perceived used the drug (such as those protesting America’s involvement in Vietnam).
The federal position on marijuana is and remains that the substance has no accepted medical use. The current DEA.gov website marijuana fact sheet makes clear that: Marijuana is a Schedule I substance under the Controlled Substances Act, meaning that it has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.
Former President Biden’s administration made significant efforts to reschedule marijuana, but the clock ran out.
(i) Federal Legalization Efforts in 2022
On Oct. 6, 2022, President Joe Biden issued pardons for defendants convicted of simple federal marijuana possession. In the same pronouncement, the president directed the executive branch’s then-U.S. Attorney General Merrick Garland and then-Health and Human Services (HHS) Secretary Xavier Becerra to conduct an administrative, science-based review concerning marijuana’s classification under the federal Controlled Substances Act.
(ii) Federal Legalization Efforts in 2023
After almost 11 months, on Aug. 29, 2023, Beccera issued a 250-plus page scientific assessment (redacted in its original release and released without redaction on Jan. 12, 2024) in which the agency recommended that the DEA reclassify marijuana as a Schedule III substance.
Part of HHS’ analysis consisted of the Food & Drug Administration’s (FDA) discovery that across the United States in state-legal regimes, “more than 30,000 [health care professionals] are authorized to recommend the use of marijuana for more than six million registered patients, constituting widespread clinical experience associated with [the treatment of] various medical conditions.”
(iii) Federal Legalization Efforts in 2024
Despite all the scientific and medical review by the FDA, then-DEA Administrator Anne Milgram, on May 7, 2024, testified before a U.S. House Committee, insisting that the DEA [an agency in the U.S. Department of Justice] had the “final authority” on scheduling and rescheduling drugs under the CSA.
Just a week later, on May 16, 2024, Garland formally requested through a 92-page Notice of Proposed Rule Making (NPRM) that the DEA “move” marijuana to Schedule III. At that time, Garland wrote, “There is, at present, substantial evidence that marijuana does not warrant control under Schedule I of the CSA”.
Customarily, the DEA administrator, not the attorney general, signs the NPRM regarding controlled substances scheduling.
The lack of the DEA official’s signature on the NPRM was interpreted by some as a lack of desire by the DEA to fully support marijuana’s “reduction” in schedule designation. In fact, tucked 13 pages into the 92-page memo were the words the “DEA has not yet made a determination as to its views of the appropriate schedule for marijuana.”
Regardless of the controversy over the signature or specific DOJ proponent of the NPRM, on May 21, 2024, the DEA published the proposed rule to reschedule marijuana as a Schedule III substance in the Federal Register. The DEA docket number included the addition of “A.G. Order No. 5931-2024” on the NPRM, indicating that the proposal came from Garland and not the DEA.
The posting of the NPRM marked the beginning of the 60-day notice and comment period by the public.
By the time the comment period closed on July 22, 2024, an unprecedented deluge of responses had been received. Specifically, some 43,000 comments were received. (The Federal Register dated May 21, 2024, lists the precise number at 43,565.)
According to the Drug Policy Alliance, the drug think tank that studied the submissions, almost 70% of the public commenters did not believe that marijuana should be a federally controlled drug, at all. The majority of commentators held the view that rescheduling (or downgrading) marijuana to a lower federal classification was not enough.
Most explained that a Schedule III designation (which is a controlled substance with a currently accepted medical use and a moderate to low physical dependence) was still too egregious. Many argued that marijuana should not even be part of the five-category classification of the Controlled Substances Act.
On Oct. 28, 2024, Milgram announced in a letter that the rescheduling of marijuana would be heard before an ALJ (a DEA administrative law judge). She selected the DEA’s chief ALJ, John Mulrooney, to conduct the evidentiary hearing. There, those for and against the rescheduling proposal (selected by the DEA) were deemed by the DEA to be qualified to testify as a “designated participant” or an “interested person.” (These terms are administrative procedure “terms of art”—the latter being someone whom the ALJ decides would be sufficiently “adversely affected or aggrieved” by the proposed scheduling action to qualify as an “interested person” permitted to testify under the regulations.)
The scope of the testimony would include (among other things) marijuana’s purported medical efficacy, addictiveness and its placement on the CSA drug schedule.
Pursuant to the Administrative Procedures Act, ALJs conduct formal hearings and adjudications (5 U.S.C. § 551, et seq.) in connection with enforcement and regulatory cases brought by the Drug Enforcement Administration (DEA) under the Controlled Substances Act (21 U.S.C. § 801, et seq.) and its attendant regulations (21 C.F.R. § 1300, et seq.). In DEA cases, the ALJ issues a “recommended decision” for the DEA’s next step and forwards it to the DEA administrator. Then the administrator decides to accept, reject or modify the recommendation and issues the final agency decision regarding the rulemaking.
The taking of testimony was set to begin on Dec. 2, 2024, at the DEA Headquarters in Arlington, Va.
The courtroom was full on that day with designated participants and their lawyers and there was so much interest that the DEA had a live video feed.
However, instead of taking testimony, the judge discussed setting the evidentiary hearing in early 2025. The ALJ transformed the proceeding into a ministerial “preliminary” by deciding not just the calendar, but also by reviewing the DEA’s “designated participants” per 21 U.S.C. sec. 811 as “interested person” selections and determining whether they qualified under the Administrative Procedures Act as “interested persons,” having “standing” to testify.
(iv) The rescheduling mojo stopped on Jan. 13, 2025, eight days before the inauguration of President Trump.
The DEA, which rightfully insisted under administrative law, that it had the final authority as to whether marijuana would or should be rescheduled, had run-out-the clock. With no hearing on rescheduling in the offing, marijuana remains (as it has been for over five decades) federally illegal.
President Trump’s DEA administrator-nominee is anti-marijuana.
On Feb. 11, 2025, President Trump nominated Terry Cole, a Virginian, to be the DEA administrator. Cole is described by the cannabis advocacy industry as “aligned” with Nancy Reagan’s anti-marijuana “Just Say No” movement and was the head of Virginia’s Department of Public Safety working for Virginia’s anti-marijuana Gov. Glenn Youngkin.
Recounting a visit in March 2024 to the Virginia Cannabis Control Authority, Cole, in a LinkedIn post, stated “Everybody knows my stance on marijuana after 30-plus years in law enforcement, so don’t even ask!” His anti-marijuana hashtags included #justsayno and #notlegal4distribution.
While President Trump has taken inconsistent positions on legalization, his previous and current attorneys general have been opposed to marijuana legalization.
President Trump has flip-flopped on the issue of marijuana legalization (picking in his first term as the 45th president two U.S. attorneys general, Jeff Sessions and Bill Barr, who were adamantly anti-marijuana legalization). Then, subsequently, as a private citizen in 2024, before his election as the 47th president, Trump asserted that he, a Florida resident, would be supporting Florida’s (ultimately unsuccessful) adult-use ballot initiative.
Trump’s recently Senate-confirmed Attorney General Pam Bondi, when serving as Florida’s state attorney general, came out against medical legalization when that initiative was being considered in Florida. Yet, candidate Trump, in the fall of 2024, said he supported rescheduling and banking reform.
Best guess? Marijuana will remain federally illegal for the immediate future.
To date, none of President Trump’s flood of executive orders (113 as of Feb. 26, 2025) concerns marijuana legalization or reform. The administrative rescheduling hearing has been canceled. The ball is back in the DEA’s court. It can withdraw the proposed rule; it can publish the rule as is or insist on a rescheduling hearing and “change up” the list of participants (selected by the previous administration’s DEA head).
The result? Marijuana reform is in limbo. It remains federally illegal for the time being, with both the president’s DOJ appointee and DEA nominee appearing to be in the anti-legalization camp. Stakeholders well know now (as marijuana’s current status proves), that elections have consequences.
Even those who use medical marijuana in jurisdictions that have legalized medical marijuana are at risk of federal prosecution. Read More
