Congressional bill amendment would restrict use of DOJ funds for marijuana rescheduling

As the U.S. Drug Enforcement Administration sifts through thousands of public comments regarding the marijuana rescheduling on a federal level, legalization advocates in Indiana and across the U.S. wonder what impact it will have on the cannabis market.

In Indiana, there will be no market unless the state’s legislature and a new governor finally pass a bill in 2025 that legalizes marijuana for either medical or recreational use.

Not everybody in Congress is on board with rescheduling marijuana.

Forbes reported the House Appropriations Committee approved legislation earlier this month to block the Biden administration’s ongoing efforts to reschedule marijuana and ease restrictions on the drug under federal law.

The Republican-led committee approved an amendment to a funding bill that blocks the Department of Justice from acting on the rescheduling plan., which would move cannabis from Schedule I of the federal Controlled Substances Act to the less restrictive Schedule III.

Brian Vicente, founding partner of national cannabis law firm Vicente LLP, said if rescheduling were not to occur, it would be a blow to states like Indiana that are behind the curve when it comes to cannabis law.

Vicente said he thought most experts feel it’s a matter of when, not if, as far as Indiana moving forward with marijuana legalization.

He called rescheduling the most significant change to cannabis law in 50 years.

The attorney said he didn’t think the efforts to block federal funding related to cannabis rescheduling would be successful, with Senate support of any such amendment unlikely.

“I don’t think that’s going to happen,” Vicente said.

The DEA is moving toward reclassifying marijuana as a less dangerous drug. The Justice Department proposal would recognize the medical uses of cannabis, but wouldn’t legalize it for recreational use.

Chad Dickerson, an attorney and CEO of Viridis Law PC, is an Indiana NORML board member.

Dickerson agreed with Vicente, saying he didn’t think any congressional efforts to impact rescheduling would be successful, although he acknowledged it could delay the process.

There is no deadline for the DEA to announce a final rule, and Dickerson said any announcement could be six weeks out or it could be six months.

Rescheduling marijuana doesn’t legalize it on a state or federal level, Dickerson said.

How marijuana rescheduling could affect Indiana

The proposed rule sent to the federal register recognizes the medical uses of cannabis and acknowledges it has less potential for abuse than some of the nation’s most dangerous drugs. The plan approved by Attorney General Merrick Garland would not legalize marijuana outright for recreational use.

The DEA took more than 43,000 public comments on the proposal.

If approved, the rule would move marijuana away from its current classification as a Schedule I drug, alongside heroin and LSD. Marijuana would instead be a Schedule III substance, alongside ketamine and some anabolic steroids.

The move comes after a recommendation from the federal Health and Human Services Department, which launched a review of the drug’s status at the urging of President Joe Biden in 2022.

Plenty of states have decided not to wait for the federal government’s blessing on marijuana legalization, either for medical or recreational use.

Indiana stands alone in the region in terms of not legalizing, with every surrounding state already approving either medical and/or recreational marijuana use.

Andrew Bauman, a NORML lobbyist with Bauman Government Relations, said Indiana is a state that loves to take an incremental approach to everything and marijuana legalization is no different.

Bauman said that medical marijuana had the best chance of getting approval by the state’s legislature and transforming Indiana from “an island in an island.”

“If you talk to any legitimate businesses in the industry, they just want common sense regulations,” Bauman said.

Democratic gubernatorial candidate Jennifer McCormick has said she supports a well-regulated legal cannabis market.

Dickerson said Republican candidate Mike Braun has expressed interest in legalization in some respects.

He said from what he is hearing from legislators, medical marijuana could come into play in the 2025 legislative session.

“It could also depend on who the next governor is,” Dickerson said.

Senate President Pro Tempore Rodric Bray said in May he saw the debate over marijuana in Indiana as more relevant if the federal government makes a classification change but hadn’t said if he would be willing to consider any form of legalization.

Bray wrote a op-ed column for the Indianapolis Business Journal in June that raised many public safety and economic questions about legalization.

The Senate leader said that states that have legalized marijuana—either medical or recreational—are in violation of federal law, with Bray adding that if the DEA’s current rescheduling proposal comes to fruition, “that disconnect between state laws and federal law would remain unchanged.”

“Since this potential rescheduling of marijuana doesn’t signal that it’s safe for recreational use or even widespread medicinal use, Indiana would be wise to continue approaching marijuana issues thoughtfully and cautiously,” Bray wrote.

Justin Swanson, a partner with Bose McKinney & Evans LLP and chair of the firm’s Cannabis group, noted Bray’s column and his going on the record with the perspective that rescheduling is not a game changer in terms of how Indiana will proceed with any legalization considerations.

For the next Indiana legislative session, Swanson believes the bigger issue lawmakers will take on is not marijuana legalization, but rather what the state does in terms of regulating hemp products.

Alicia Tucker, Indiana NORML’s chairperson, pointed out that Marion County Prosecutor Ryan Mears has been in the spotlight for his stance against prosecuting possession of small amounts of marijuana.

Tucker said there were more than 36,000 Hoosiers arrested for possession of marijuana between 2018 and 2022.

That arrest data is provided to the FBI on an annual basis by the National Incident-Based Reporting System, according to NORML.

Rescheduling timeline

Like Vicente, Swanson said the U.S. House committee bill and its amendment that would affect rescheduling weren’t likely to gain any traction.

“These are pretty partisan bills that don’t have support in the (full) House. They’re pretty dead on arrival in the Senate,” Swanson said.

Swanson said there’s no concrete timeline for the DEA to issue a final rule.

The agency will review all public comments and there could be requests for a rehearing prior to any issuing of a final rule. Swanson said once the final rescheduling rule is published, there will be a 30 day public comment period.

He said while Democrats on a state and national level have generally been supportive of marijuana legalization, former President Donald Trump has been less vocal about where he stands on the issue.

Vicente said he thought it was likely a final rule on cannabis rescheduling would be released before the November presidential election.

Bauman said lawsuits may delay the process, but he expects a final rule issued within the next two months.

Regardless of who wins the presidential election, Bauman expects any final rule to stay in effect

“I don’t think that Trump potentially winning would change this,” Bauman said.•