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A (Second) Open Letter to Rep. Matthew Lewis Gaetz II
An update from the Department of Justice
September 9, 2023
Dear Rep. Matthew Lewis Gaetz II:
Around a month ago, in my last open letter to you, I requested assistance.
In testimony, Administrator Milgram identified a letter that President Biden had allegedly sent the HHS Secretary and the Attorney General:
So, Congressman, as you know the President had sent a letter to the Secretary of HHS and to the Attorney General to ask for the scheduling, descheduling process to begin. Its now with HHS. They are in that process. They start, then they send it to DEA. We have not received it yet.
I submitted a Freedom of Information Act (FOIA) request to HHS seeking the letter. HHS told me the letter did not exist:
That made small waves in the 420-sphere.
Like you, I am a FIREBRAND. Persistent. Passionate. Aggressive. So, I now have an update.
I sent a follow up FOIA request with HHS and DOJ on August 10. I rephrased my FOIA request as follows:
the letter, document, or record from President Biden to the Attorney General specifically described by DEA Administrator Anne Milgram in her testimony to Congress
After describing this request as “complex,” DOJ got back to me yesterday. It has advised me that there never was any “letter to the Secretary of HHS and to the Attorney General to ask for the scheduling, descheduling process to begin.”
Rather, the Administrator mistakenly referred to the Statement from President Biden on Marijuana Reform | The White House in her testimony—which is, of course, a Press Release.
So, she misspoke. Case closed.
Matthew C. Zorn
Does any of this matter? Ultimately, probably not. So why am I making a mountain out of a misstatement by the Administrator?
The Controlled Substances Act is clear that “proceedings” to reschedule a substance “may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary, or (3) on the petition of any interested party.” A White House statement is not a “petition” of an interested party let alone a petition that complies with DEA regulations. When I filed my FOIA requests, the rescheduling process was not legally anywhere. As a legal matter, there was no ongoing process.1 At least not a formal one. Hence why I wrote about there being “no timelines.” If nobody filed a petition, there are no timelines.
Today, that may be different. It appears the Secretary has forwarded a rescheduling recommendation to DEA. That likely meets the statutory definition of the phrase “at the request of the Secretary.”
Still, impossible to know. As I discuss here, perhaps these statutory rulemaking procedures simply don’t legally apply. DEA’s position is that under 21 U.S.C. 811(d)(1), it doesn’t need to abide by them. Also, we have no idea what that recommendation says. Could just be a handwritten note or tweet.
This is a historic process. If it were just a bit more transparent, none of this would be a mystery.
And one more thing…
Although the President appears to have never sent a “letter” or petition to either agency, someone else did. Months before the President’s announcement—and a couple months after I remarked in MJBizDaily that someone should “[f]ile a petition” and “make all the same arguments we made” in Sisley—someone else did just that:
Does this bit matter? For more than a year DEA has had at least one substantive rescheduling petition sitting on its desk. That petition asks DEA to begin the formal rulemaking process, and it also directly attacks the way DEA has interpreted “currently accepted medical use in treatment” and state medical programs. Should DEA’s consideration of these issues been conducted in parallel with HHS, and in any event, before last week? Maybe.
In case you aren’t keeping tabs here, DEA and the federal courts are quite finnicky about these rescheduling procedures.