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Two GOP senators, including the lead Republican sponsor of a marijuana banking bill, have officially filed new legislation to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.
Sens. Cynthia Lummis (R-WY) and Steve Daines (R-MT) are sponsoring the Deferring Executive Authority (DEA) Act, which they briefly previewed this week in statements about the filing of the revised Secure and Fair Enforcement Regulation (SAFER) Banking Act.
The DEA Act, introduced on Thursday, would make it so any administrative proposal to transfer marijuana “between schedules” of the Controlled Substances Act (CSA)—as the U.S. Department of Health and Human Services (HHS) recently recommended to the Drug Enforcement Administration (DEA) as part of a review directed by President Joe Biden—must first be submitted to Congress for review. If lawmakers oppose it, they would then have 60 session days to pass a joint resolution to block its enactment.
“Congress makes the laws in this country, not D.C. bureaucrats,” Lummis said in a press release on Thursday. “The American people through their elected representatives in the Senate and House should have the final say on such a momentous change as the legalization of marijuana.”
That’s an interesting way to frame it, as polling has consistently showed that, unlike the bill sponsors, a strong and increasingly bipartisan majority of Americans support legalizing cannabis.
“The Biden administration’s rush to reschedule marijuana without compelling scientific evidence appears to be political, not about what’s best for the American people,” Lummis said, echoing points made by 14 of her GOP House and Senate colleagues who sent a letter to DEA last week, urging the administrator to “reject” HHS’s recommendation to simply move cannabis from Schedule I to Schedule III.
The senators’ bill would cover any marijuana scheduling action. While it’s currently in the strictest category under the CSA, it would also give Congress the authority to block proposed changes to move it back up in the schedule list in the future. The legislation specifically says lawmakers could intervene in “transferring marijuana between schedules” (emphasis added), so as a technical matter it’s unclear if that would include full descheduling (i.e. legalization) while would remove marijuana from the CSA altogether.
“While I disagreed with marijuana being legalized in Montana, the people spoke at the ballot box and I respect that decision,” Daines said. “However, I am firmly opposed to legalization or descheduling at the federal level without Congressional input.”
Lummis’s statement references a recent Congressional Research Service (CRS) report that assessed it was “likely” that DEA would abide by the HHS rescheduling recommendation, which was made following an 11-month scientific review stemming from Biden’s directive.
The senator’s office said moving cannabis to Schedule III as advised would, “in essence, legalize marijuana federally.” However, if marijuana is rescheduled, it would remain federally illegal except for medical use with a prescription from a doctor. And the Food and Drug Administration (FDA) generally does not approve holistic or plant-based medicine as drugs that can be prescribed.
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The legislation’s introduction comes during a week of heightened attention to federal cannabis policy, with a revised version of Daines’s bill to free up banking services for state-legal marijuana businesses—which Lummis is also cosponsoring—being filed on Wednesday as the Senate Banking Committee prepares for a markup next week.
Senate Majority Leader Chuck Schumer (D-NY) says he plans to attach amendments to the SAFER Banking Act to facilitate state-level cannabis expungements and preserve gun rights for medical cannabis patients when it reached the floor. Daines’s office has previously said that he’s amenable to the expungements add.
Also, House Democrats reintroduced a bill to federally legalize, tax and regulate marijuana on Wednesday, with provisions to expunge prior cannabis convictions. And in a campaign email to supporters, Schumer called on people to sign a petition to “demand” an end to federal marijuana prohibition.
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