US Congressmen Press DEA Head to Explain Her Signature Absence on Cannabis Rescheduling Document

Attorney General Merrick Garland signed a 92-page notice of proposed rulemaking on May 16 for rescheduling cannabis, a document historically signed by the head of the Drug Enforcement Administration (DEA), and now a pair of GOP congressmen are demanding answers.

U.S. Reps. Andrew Clyde, R-Ga., and Ben Cline, R-Va., sent a letter to DEA Administrator Anne Milgram on May 22 to express their “grave concern” over her “repeated refusal to respond to questions” from members of Congress regarding the cannabis rescheduling process. The congressmen also asked the chief to provide the reasoning behind Garland’s signature appearing on the proposed rulemaking document instead of hers.

Specifically, Milgram said during a House subcommittee hearing on May 7, “Unfortunately, I’m not going to be able to get into this conversation right now,” when Clyde asked her if the decision to reschedule cannabis is being initiated or “encouraged predominantly” by the White House Office of Management and Budget, the attorney general’s office or the DEA.

“During this year’s DEA budget hearing, you repeatedly refused to answer any questions related to the ongoing marijuana reclassification formal rulemaking process from multiple members of the subcommittee, stating that you had been advised it would be ‘inappropriate’ to respond to such questions given your role in the process, and you even cited the Administrative Procedure Act (APA) as a legal justification for not responding to these questions,” Clyde and Cline wrote in their May 22 letter to Milgram.

The letter calls into question Milgram’s legal justification for refusing to answer the related questions in committee and also requests Milgram to respond to two questions regarding the absence of her signature on the May 16 notice of proposed rulemaking:

1. In the FY25 DEA budget hearing, you testified that the DEA is the final authority to schedule, reschedule or deschedule a drug under the Controlled Substances Act (CSA). So, why did you NOT sign the notice of proposed rulemaking to reschedule marijuana released by the DEA on May 16, 2024?
2. Additionally, in the FY25 DEA budget hearing, you testified that you were not aware of any instance in which a rulemaking that schedules, reschedules or deschedules a drug under the CSA is not signed by the administrator of the DEA. So, did the Department of Justice (DOJ) provide the DEA with justification to break decades of precedent to have the attorney general ultimately sign the notice of proposed rulemaking? If so, please describe in detail the DOJ’s justification to you or the DEA for this decision.

Milgram informed her top deputies in March that she would not be the one signing the document, The Associated Press reported earlier this week, but it wasn’t until the notice was actually released in mid-May that the public became aware.

This swap in signature duties not only veers from precedence, but it breaks ties with DEA Acting Chief Michael Miller’s assertion in December 2023 that the DEA “has the final authority to schedule, reschedule or deschedule a drug under the Controlled Substances Act.”

While the DEA is an agency under the DOJ, which Garland heads, the DEA’s “final authority” on rescheduling drugs under the CSA was also confirmed by Milgram in the May 7 subcommittee hearing—two months after she already knew the DOJ would be taking over the reins of the ongoing process to reclassify cannabis as a Schedule III drug, per the AP report.

“Since DEA is ultimately the decider of scheduling and rescheduling, and the DEA administrator is in that role, it would be inappropriate for me to make comments about this process or parts of that process,” Milgram said during the subcommittee hearing.

While Milgram cited the Administrative Procedure Act as her reasoning for not answering Clyde’s questions, “The APA does provide for certain restrictions on ex parte communications by any person involved in the formal rulemaking process, which would include the DEA administrator during a formal rulemaking process for drug classification under the CSA,” Clyde and Cline wrote in their letter.

“However, the APA, under the same section that provides for restrictions on ex parte communications, explicitly provides an exemption for Congress, stating: ‘This subsection does not constitute authority to withhold information from Congress,’” the congressmen wrote.

Under that exception, as well as a DOJ interpretation of the Freedom of Information Act, Clyde and Cline wrote that Milgram was “legally compelled” to answer the cannabis rescheduling-related questions during her testimonial in front of the House Commerce, Justice, Science and Related Agencies Subcommittee members on May 7.

“Accordingly, we expect to receive answers to the questions asked by members during the hearing,” the congressmen wrote.

They gave her a June 5, 2024, deadline.