No. 6 – The Major Questions Doctrine and Cannabis Reform: Delegation, Scale, and Judicial Review

The Major Questions Doctrine and Cannabis Reform: Delegation, Scale, and Judicial Review

 

By Jason Karimi | WeedPress Policy Series No. 6

February 14, 2026

 

The prior essays examined the Controlled Substances Act (CSA) as a regulatory architecture containing delegated exception authority and then clarified the limits of that delegation under 21 U.S.C. § 822(d).

A further question remains.

Even if statutory text permits a measure of administrative flexibility, how would courts evaluate the exercise of that authority if used to effect large-scale regulatory change?

The answer lies in modern administrative law’s articulation of the Major Questions Doctrine.

I. The Modern Doctrine

 In recent years, the Supreme Court has emphasized that agencies must point to clear congressional authorization when asserting regulatory power over issues of vast economic or political significance.

In West Virginia v. EPA, 597 U.S. 697, 716–19 (2022), the Court explained:

“In certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed.” Id. at 721 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).

The Court described those circumstances as involving decisions of “vast economic and political significance.” Id. at 716 (quoting Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014)).

 

The following year, in Biden v. Nebraska, 600 U.S. 477, 503–05 (2023), the Court elaborated on the doctrine’s underlying principles:

“In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ” Utility Air, 573 U. S., at 324. That clarity may come from specific words in the statute, but context can also do the trick. Surrounding circumstances, whether contained within the statutory scheme or external to it, can narrow or broaden the scope of a delegation to an agency.

“This expectation of clarity is rooted in the basic premise that Congress normally “intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC, 855 F.3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of reh’g en banc). Or, as Justice Breyer once observed, “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute’s daily administration.” S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986); see also A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 1003–06 (2013). That makes eminent sense in light of our constitutional structure, which is itself part of the legal context framing any delegation. Because the Constitution vests Congress with “[a]ll legislative Powers,” Art. I, §1, a reasonable interpreter would expect it to make the big-time policy calls itself, rather than pawning them off to another branch. See West Virginia, 597 U.S., at 719.”

These decisions do not eliminate delegated authority; they clarify when heightened textual clarity is required before upholding sweeping administrative action.

Cannabis reform sits at the intersection of economic scale, federalism tension, and longstanding criminal regulation. Any executive effort to significantly restructure national cannabis policy through delegated mechanisms would likely be evaluated through this lens.

II. Delegation Versus Transformation

There is a meaningful difference between:

 

• Administrative accommodation within a statutory framework; and

• Structural transformation of national drug policy.

 

The former may fall comfortably within delegated authority.

The latter risks triggering judicial skepticism unless Congress has spoken with unmistakable clarity.

The Major Questions Doctrine does not ask whether an agency has some authority. It asks whether Congress clearly authorized action of that magnitude. See Biden, 600 U.S. at 503–04.

This distinction is particularly significant in the cannabis context, where regulatory adjustments may range from narrow registration accommodations to actions that substantially alter national enforcement dynamics.

III. Implications for § 822(d) and Part 1307

Section 822(d) authorizes the Attorney General, by regulation, to waive certain registration requirements consistent with public health and safety.

As previously discussed in Policy Series No. 5, that authority operates within the CSA’s broader scheduling and enforcement framework.

If invoked narrowly — to adjust regulatory mechanics or implement limited categorical accommodations — such action would likely be reviewed under traditional administrative law standards.

If invoked to effect sweeping nationwide regulatory change in a manner that alters the practical landscape of federal cannabis enforcement, courts would likely examine:

• The scale of economic impact;

• The political significance of the change;

• The clarity of statutory text;

• Historical agency practice.

 

See West Virginia, 597 U.S. at 716–19.

The doctrine does not prohibit reform. It defines the level of statutory clarity required to sustain it.

IV. Federalism Context

Cannabis regulation already exists within a patchwork of state medical and adult-use systems layered atop federal prohibition.

When an issue carries both:

 

• Significant economic consequence across state markets; and

• Deep political controversy affecting federal–state balance;

courts are more likely to require unmistakable congressional authorization before upholding transformative executive action. See Biden, 600 U.S. at 503–05.

This is not hostility to reform. It is structural judicial caution rooted in separation of powers principles.

V. What the Doctrine Does — and Does Not — Do

The Major Questions Doctrine does not invalidate the CSA’s delegated authorities.

It does not render § 822(d) meaningless.

It does not prohibit the executive branch from exercising discretion within statutory bounds.

What it does is impose a clarity requirement when administrative action moves from accommodation to transformation.

Understanding that distinction prevents two common analytical errors:

 

• Assuming the executive branch may unilaterally resolve cannabis policy at scale;

• Assuming the executive branch possesses no meaningful delegated authority at all.

 

Both oversimplify the statutory and constitutional terrain.

VI. Why This Matters

Public debate often frames cannabis reform as a binary:

 

• Either Congress must act; or

• The executive branch is powerless.

 

Modern administrative law suggests a more nuanced reality.

 

Delegation exists.

Judicial scrutiny increases with scale.

Clarity controls.

 

Whether future cannabis reform efforts succeed through administrative mechanisms will depend not only on statutory text, but on how courts evaluate the magnitude of the action taken relative to congressional authorization.

 

The CSA operates within a constitutional structure. Delegated authority is real — but so are its judicial limits.

Conclusion

The Controlled Substances Act contains delegated exception authority. It also exists within a constitutional system that requires clear congressional authorization for decisions of vast economic and political significance.

The Major Questions Doctrine does not erase administrative flexibility. It shapes the judicial analysis when that flexibility is exercised at scale.

Understanding that framework allows for more disciplined and realistic conversations about cannabis reform pathways.

 

Delegation exists.

Scale matters.

Clarity controls.

 

WeedPress Policy Series

No. 1 — Legal Memorandum: Common Misconceptions in Cannabis Activism Regarding Federal Drug Law (January 25, 2026)

No. 2 — The Path to a Religious Cannabis Exemption: How Medical Cannabis Systems Change the RFRA Equation (January 27, 2026)

No. 3 — Structural Contradictions and Prospective Litigation Risk in Post-Rescheduling Cannabis Policy (February 6, 2026)

No. 4 — The Controlled Substances Act Is Not a Blunt Instrument — It Is an Architecture of Exceptions (February 13, 2026)

No. 5 — The Limits of § 822(d): What It Does — and Does Not — Authorize (February 13, 2026)

No. 6 — The Major Questions Doctrine and Cannabis Reform: Delegation, Scale, and Judicial Review (February 14, 2026)

No. 7 — Chevron’s Collapse and Cannabis Regulation: Judicial Review After Loper Bright (February 17, 2026)

No. 8 — Administrative Procedure Act Vulnerabilities in DEA Rescheduling (February 20, 2026)

No. 9 – No. 9 — Dormant Commerce Clause, Circuit Splits, and Cannabis Federalism (February 23, 2026)

No. 10 — Federal Preemption After Rescheduling: Conflict, Obstacle, and Cannabis Federalism (February 27, 2026)

No. 11 — Equal Protection and Economic Protectionism in Cannabis Licensing: Classification, Remedial Design, and Constitutional Limits (March 3, 2026)

No. 12 — Federal Rescheduling as a Preemption Trigger: Rational Basis, Conflict, and State Schedule I Exposure (March 6, 2026).

No. 13 — Criminal Prosecution After Federal Medical Recognition: Motions Practice, Rational Basis, and Schedule I Litigation Exposure (March 10, 2026).

Jason Karimi, Cannabis Federalism After Medical Recognition: Administrative Record, Rational Basis, and Vertical Separation of Powers, WeedPress White Paper No. 1 (Mar. 17, 2026).

 

About Weedpress Policy Series

The Weedpress Policy Series publishes in-depth, citation-supported analysis of federal cannabis law, regulatory policy, and enforcement practices. The series is designed to provide lawmakers, attorneys, journalists, and stakeholders with legally grounded, non-activist, non-promotional analysis focused on statutory reality and institutional accountability.

Weedpress Policy Series emphasizes:

• Federal statutory interpretation
• Congressional intent and legislative history
• Treaty and international law implications
• Administrative law and agency authority
• Oversight of enforcement discretion and regulatory gaps