Federal Marijuana Rescheduling Could ‘Open A Door’ For Washington, D.C. To Finally Legalize Sales Locally, Legal Analysis Says

If the Biden administration’s marijuana rescheduling proposal is ultimately implemented, it could “open a door” for Washington, D.C. to finally legalize marijuana sales, according to a new legal analysis published by NORML.

While the impact of moving cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA) on individual states would likely be “limited,” maintaining the policy disconnect between state-level legalization and federal prohibition, it could have a more meaningful effect for D.C., the pro-legalization group said.

“Washington, D.C. is in a different situation,” the analysis says. “Rescheduling could have an outsized impact on the legal marijuana market in the nation’s capital.”

As it stands, the District has been specifically barred from implementing a system of adult-use cannabis sales under a longstanding spending bill rider from Rep. Andy Harris (R-MD).

“This rider was intended to prevent the D.C. Council from adopting more liberal cannabis policies” after voters approved adult-use legalization at the ballot in 2014, NORML said. Local lawmakers have managed to enact certain workarounds to expand access, but the District is still uniquely restricted from doing what nearly half of the states in the U.S. have done with commercial marijuana markets.

How could that change is cannabis is federally rescheduled?

The Harris rider stipulates that D.C. cannot use any of the appropriated funds to “enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act or any tetrahydrocannabinols derivative for recreational purposes.”

Marijuana would no longer be a Schedule I substance if the Biden administration’s reclassification proposal is enacted. And while “tetrahydrocannabinols derivative” is “not defined in the CSA or D.C. law, it is unlikely to be interpreted by a court as inclusive of marijuana generally,” the analysis says.

“Any move by the D.C. Council to enact legislation regulating the sale of recreational marijuana is more than likely to be met with opposition by some members of Congress, but unless Congress explicitly acts, rescheduling will open a door for D.C. to take back control over its local cannabis policy,” it says.

In a separate report published earlier this year by the Congressional Research Service (CRS), analysts also said that the “proposed rescheduling of marijuana would permit the District government, as a matter of local law, to authorize the commercial sale of recreational marijuana, establish market regulations, and levy marijuana taxes, among other policy option.”

But the congressional researchers noted that “the continued prohibition on legalization of tetrahydrocannabinols derivatives by the District could lead to interpretive questions about whether a particular substance is legally marijuana, hemp, a tetrahydrocannabinols derivative, or something else.”

“Certain synthetic tetrahydrocannabinols remain illegal for recreational use under D.C. law, but it is not clear whether these synthetic substances would constitute derivatives,” the CRS report said. “In addition, although federal law defines marijuana and hemp to be exclusive of each other, a substance could conceivably be both a tetrahydrocannabinols derivative and marijuana or hemp as a matter of law.”

Meanwhile, President Joe Biden has consistently maintained the D.C. ban in his budget proposals. And while congressional lawmakers have attempted on several occasions to strip the rider, they’ve so far been unsuccessful.

Meanwhile, in addition to this possible impact on the District, rescheduling would also allow state-licensed marijuana businesses to take federal tax deductions they’ve long been prohibited from doing under prohibition. It’s also believed that moving cannabis to Schedule III will remove certain research barriers.

But whether marijuana is ultimately rescheduled still remains to be seen. The Justice Department formally proposed the reform following a scientific review from the U.S. Department of Health and Human Services (HHS), but the Drug Enforcement Administration (DEA) is now carrying out administrative hearings to solicit additional input before potentially finalizing the rule.

Last week, DEA Administrative Law Judge (ALJ) John Mulrooney issued a ruling laying out the timeline for merit-based hearings on the Biden administration’s rescheduling proposal.

While an initial preliminary hearing happened last week, the merit-based proceedings were delayed until at least early 2025 after Mulrooney notified DEA that it provided insufficient information about the 25 selected witnesses that Milgram submitted.

Meanwhile, Mulrooney also denied a motion to remove the agency from hearings on the cannabis proceedings. However, he sharply criticized responses from DEA and a prohibitionist group over an allegation that they unlawfully communicated during the cannabis rulemaking process.

An attorney subsequently filed a lawsuit against DEA for allegedly violating federal public records laws, requesting that a court compel the agency to disclose communications with SAM.

A coalition of health professionals that advocates for cannabis reform recently asked the DEA judge to halt the hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.

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