No. 8 – Administrative Procedure Act Vulnerabilities in DEA Rescheduling

Administrative Procedure Act Vulnerabilities in DEA Rescheduling

By Jason Karimi | WeedPress Policy Series No. 8
February 20 2026

The prior essays examined how the Major Questions Doctrine and the collapse of Chevron deference reshape judicial review of agency action.

If the Drug Enforcement Administration (DEA) undertakes significant rescheduling under the Controlled Substances Act (CSA), the central constraint will not be rhetorical. It will be procedural.

The Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., supplies the framework through which federal courts review agency rulemaking. For cannabis rescheduling, the APA may prove as consequential as any constitutional doctrine.

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I. The Statutory Framework for Judicial Review

Judicial review of agency action is governed primarily by 5 U.S.C. § 706.

Section 706(2)(A) provides that a reviewing court shall:

“hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
— 5 U.S.C. § 706(2)(A)

Additional grounds include agency action:

• “in excess of statutory jurisdiction, authority, or limitations,” § 706(2)(C);
• “without observance of procedure required by law,” § 706(2)(D).

When the DEA promulgates a rule altering the schedule of a substance under 21 U.S.C. § 811, that rule is subject to these standards.

Courts review DEA scheduling actions under the APA’s arbitrary-and-capricious standard, 5 U.S.C. § 706(2)(A), and for compliance with required procedures.

The court’s role is not to decide policy. It is to determine whether the agency complied with statutory requirements and engaged in reasoned decision-making.

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II. Arbitrary and Capricious Review: The “Hard Look” Standard

The modern formulation of arbitrary-and-capricious review comes from Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).

An agency rule is arbitrary and capricious if the agency:

• Relied on factors Congress did not intend it to consider;
• Failed to consider an important aspect of the problem;
• Offered an explanation that runs counter to the evidence;
• Or reached a conclusion so implausible it cannot be attributed to agency expertise.
Id. at 43.

Courts do not substitute scientific judgment. But they require rational explanation grounded in the record.

For DEA rescheduling, that means the agency must demonstrate that it:

• Considered statutory criteria,
• Engaged relevant scientific evidence,
• Addressed contrary findings,
• And explained how its conclusions follow from the evidence.

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III. Notice-and-Comment and the Administrative Record

Rescheduling requires notice-and-comment rulemaking under 5 U.S.C. § 553.

The agency must:

• Publish a proposed rule,
• Invite public comment,
• Consider relevant submissions,
• Provide a statement of basis and purpose.

Courts review the administrative record as compiled. See Camp v. Pitts, 411 U.S. 138, 142 (1973).

For cannabis rescheduling, the record may include:

• HHS scientific and medical evaluation,
• Public comment submissions,
• Clinical research,
• Abuse data,
• International treaty considerations,
• State regulatory evidence.

An incomplete record or conclusory explanation increases vulnerability under § 706(2)(A).

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IV. Policy Change and Reliance Interests

When an agency reverses or modifies longstanding policy, it must acknowledge the shift.

In FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), the Court held that agencies must:

1. Show awareness of the change;
2. Provide good reasons for the new policy;
3. Address serious reliance interests.
Id. at 515–16.

Rescheduling marijuana after decades of Schedule I classification is a paradigmatic example of policy change requiring careful explanation.

Failure to grapple with prior administrative conclusions invites remand.

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V. Independent Judicial Review After Loper Bright

After Loper Bright Enterprises v. Raimondo, 603 U.S. _ (2024), courts no longer defer automatically to agency interpretations of ambiguous statutes.

Courts must exercise independent judgment in determining whether the agency acted within statutory authority.

That means rescheduling will face:
1. Independent statutory interpretation;
2. Arbitrary-and-capricious review under § 706;
3. Potential Major Questions scrutiny if scale warrants.

Layered review increases litigation risk.

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VI. The HHS Two-Part Test and Its Legal Significance

The CSA requires that a substance have a “currently accepted medical use in treatment in the United States” (CAMU) before placement outside Schedule I. See 21 U.S.C. § 812(b).

Historically, the DEA applied a rigid five-part test when no FDA approval existed.

In August 2023, however, the Department of Health and Human Services (HHS) applied a new two-part inquiry in recommending marijuana’s rescheduling:

1. Widespread current experience with medical use by licensed health care providers operating under implemented jurisdiction-authorized programs; and
2. Credible scientific support for at least one identified medical use.

In April 2024, the Department of Justice Office of Legal Counsel (OLC) concluded:

“Limiting the CAMU analysis to whether a drug has been approved by FDA or meets DEA’s five-part test is impermissibly narrow. Satisfying HHS’s two-part inquiry is sufficient to establish that a drug has a currently accepted medical use under the CSA.”
— DOJ Office of Legal Counsel, Questions Related to the Potential Rescheduling of Marijuana (Apr. 11, 2024).

DEA has since cited that opinion in Federal Register rulemaking notices. See:

• Schedules of Controlled Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44597 (May 21, 2024);
• Placement of Seven Specific Fentanyl-Related Substances in Schedule I, 90 Fed. Reg. 12860, 12863 (June 26, 2025);
• Schedules of Controlled Substances Action, 90 Fed. Reg. 25910, 25913 (Oct. 15, 2025).

These citations demonstrate that the two-part framework has moved from theoretical proposal to operative regulatory practice.

But critically:

The HHS two-part test is an agency analytical framework — not the judicial standard of review.

Courts reviewing a rescheduling decision will not independently apply the two-part test. Instead, they will examine whether the DEA:

• Considered HHS’s scientific findings;
• Explained its reliance on them;
• Addressed contrary evidence;
• Acted within the CSA’s statutory structure.

State-level medical recognition may be relevant evidence in that record.

If dozens of states define marijuana as medicine and operate physician-supervised programs, courts may consider whether the agency rationally accounted for that reality when evaluating “currently accepted medical use.”

State definitions do not control federal scheduling.

But under arbitrary-and-capricious review, widespread state medical frameworks may constitute part of the evidentiary context the agency must reasonably address.

The two-part test influences agency decision-making.

Judicial review evaluates whether that influence was rationally explained.

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VII. Major Questions Overlay

If rescheduling has vast economic or political consequences, courts may apply the Major Questions Doctrine. See West Virginia v. EPA, 597 U.S. 697, 716–19 (2022).

That doctrine requires clear congressional authorization for sweeping regulatory action.

It does not replace APA review. It adds another layer.

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VIII. Litigation Risk and Remand

Challenges to DEA rescheduling proceed under 21 U.S.C. § 877 in the courts of appeals.

Potential claims include:

• Failure to adequately consider statutory factors;
• Insufficient explanation under State Farm;
• Procedural defects under § 553;
• Exceeding statutory authority under § 706(2)(C).

Remand is common in administrative law. See State Farm, 463 U.S. at 57.

Even if rescheduling ultimately survives, inadequate explanation can delay implementation and create regulatory uncertainty.

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Conclusion

Rescheduling is not merely political. It is procedural.

Under 5 U.S.C. § 706(2)(A), courts will set aside agency action that is arbitrary, capricious, or inadequately explained.

The HHS two-part test has reshaped the agency’s evaluation of medical use. But courts will not treat that framework as self-validating.

They will ask whether the agency:

• Acted within statutory authority;
• Built a sufficient record;
• Offered reasoned explanation;
• Addressed relevant context.

Delegation exists.
Judicial independence is heightened.
Procedural rigor determines durability.

In the post-Chevron era, cannabis reform must survive administrative law before it survives politics.

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).

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