Separation of Drug Scheduling Powers

Abstract

Drug scheduling places substances believed to be harmful and addictive under strict federal control. In 1970, Congress enacted the Controlled Substances Act (CSA), which split drug scheduling authority between executive departments to leverage their specialized expertise. Today, the CSA grants the Department of Health and Human Services (HHS) authority over scientific aspects of drug scheduling and the Drug Enforcement Administration (DEA) jurisdiction over nonscientific, law-enforcement-related matters. However, since 1970, the separation of scheduling powers has collapsed, and law enforcement officials have assumed powers reserved for public health experts. Bureaucratic drift, where policies diverge from what lawmakers attempted to achieve, has produced redundant responsibilities and unscientific scheduling outcomes that contradict the CSA text, purpose, and legislative history. 

Statutory reforms could produce a more rational and reliable system. However, many shortcomings of drug scheduling stem from misinterpreting how the CSA splits agency authority. To produce more effective and economical scheduling actions, HHS should embrace its substantial yet frequently overlooked scheduling powers, including a categorical drug control veto that can override DEA regulatory proposals, as well as a more nuanced scheduling veto, which can guide and even constrain DEA scheduling options. DEA should conserve limited law enforcement resources and maintain the separation of scheduling powers by focusing on nonscientific aspects of drug scheduling. Courts, Congress, and the White House can also play a role.

Keywords: drug scheduling, drug control, controlled substances act, DEA, FDA, HHS, NIDA, public health, administrative law, regulation, agency authority, agency power, rulemaking, , MDMA, rescheduling, marijuana, Biden, Trump, OLC, drug