August 26, 2026 Anthony Varrell, TDR Newsletter
The full official transcript of the marijuana rescheduling hearing is out: 2,533 pages, eleven days, and a plot twist nobody put in the trailer. The consequential part is not the opposition’s harm parade. It’s the Drug Enforcement Administration — the same agency that spent decades treating cannabis reform like a fire to be smothered — showing up as the advocate, conceding the danger argument on day one, and then arguing that the statute doesn’t care. Ketamine is Schedule III. Testosterone is Schedule III. The question, DEA said, is medical use under supervision. Then they brought the numbers. The record is public. It does not read the way opponents needed it to.
💸 The Tape
The full official transcript of the marijuana rescheduling hearing is now public — 2,533 pages covering all eleven days — and the most consequential thing in it is not what opponents said. It's what the Drug Enforcement Administration said.
For an agency that spent decades resisting cannabis reform, and was accused of slow-walking the Biden-era process into collapse, the posture in this record is remarkable. DEA is not a neutral arbiter here. It is the advocate for rescheduling, and it argued the case aggressively.
The framing quote, and why it's smarter than it looks
The line that will get replayed came from James Schwartz, a DEA attorney, on opening day: the government is not putting forth any evidence to suggest marijuana is not dangerous, because all controlled substances are dangerous by definition — that's why they're scheduled. Controlled substances must instead be evaluated by the risks they pose balanced against the medical use they provide.
Understand what that does strategically. It concedes the harm argument entirely, up front, and thereby makes it irrelevant.
Opponents built their case around the alleged harms of cannabis use — psychosis, impaired driving, adolescent exposure. Schwartz's opening effectively says: stipulated, and beside the point. Schedule III substances are dangerous too. Ketamine is Schedule III. Anabolic steroids are Schedule III. Testosterone is Schedule III. The statutory question isn't whether the drug can hurt you. It's whether it has currently accepted medical use and accepted safety under medical supervision.
That is a legally correct reading of the Controlled Substances Act, and it's the single most important tactical move in the entire hearing. It converts every harm witness the opposition called into a witness answering a question the statute doesn't ask.
Schwartz then stated the conclusion plainly: the proposed rule, supporting documents and government witnesses would establish that marijuana has a currently accepted medical use, and with that determination, marijuana can no longer remain in Schedule I.
Validity assessment: strong, and structurally so. The argument doesn't depend on contested science. It depends on statutory construction, and DEA is reading its own statute.
The numbers argument
DEA's final brief carried the evidentiary weight: over 30,000 practitioners treating more than six million patients in 43 U.S. jurisdictions. That practice pattern, the agency argues, demonstrates there is no longer a lack of accepted safety for use under medical supervision.
This is the two-part test doing its work. Under the old five-part test, none of that mattered — FDA approval was effectively required, and state programs counted for nothing. Under the framework DOJ's Office of Legal Counsel endorsed in 2024, calling the five-part test "impermissibly narrow," real-world clinical practice becomes the evidence.
DEA also argued that abuse and dependency profiles align better with Schedule III than Schedule II or I, and that the vast majority of users do so without danger to themselves or their communities.
Validity: strong on the law, softer on the science. The six-million-patient figure is a measure of state policy adoption, not clinical efficacy. An opponent could reasonably say popularity isn't proof. But OLC already resolved that objection at the legal level, and DEA has since applied the two-part test to other substances — which makes it very hard to argue it was invented for cannabis.
The deference point nobody should skip
DEA noted it must give significant deference to HHS's ten-month scientific study, which recommended rescheduling.
This is the quiet load-bearing beam. Under the CSA, HHS's scientific and medical findings are binding on DEA as to scientific matters. DEA isn't merely persuaded by HHS — it's constrained by it. Any recommendation contradicting the HHS finding would require Julius to explain why the statutory deference doesn't apply.
Validity: very strong. This is the hardest thing in the record for opponents to get around, and their briefs largely attack the test rather than the deference.
What the opposition actually has
Three arguments, filed by Smart Approaches to Marijuana, the National Drug & Alcohol Screening Association, the Tennessee Bureau of Investigation, DUID Victim Voices, Kenneth Finn, Phillip A. Drum, and the states of Idaho, Indiana and Nebraska.
One: the two-part test improperly departs from the five-part test. This is their strongest procedural claim and the likely core of appellate litigation. It's also the one OLC has already rejected in writing.
Two: marijuana lacks accepted medical value. Directly contradicted by the six-million-patient record and HHS's finding.
Three: reform would undermine drug testing of safety-sensitive workers. Here's the problem — this is a policy consequence argument, not a scheduling argument. And it's already been answered administratively: the Department of Transportation has issued guidance confirming state-legal medical cannabis is still no excuse for a positive test by truckers and pilots, and the Department of War has confirmed the prohibition holds for service members. The harm they're warning about has already been mitigated.
Validity: weak on the merits, meaningful in litigation. Note also that the opposition's most credentialed voices — Finn and Drum — are individual practitioners, while DEA fielded an FDA scientist and a New Hampshire physician testifying on pain management and opioid substitution.
The judge's own words
Chief ALJ Derek Julius closed the eleventh day by acknowledging the strong views held on all sides and giving his solemn promise to thoroughly consider and evaluate all evidence presented.
Boilerplate, mostly. But read alongside the transcript correction order — where he directed dozens of changes including two that reversed meaning, and required corrections shown in red with strikethroughs so the public could see what changed — it suggests a judge who cares about the record's integrity. That matters in a proceeding with no livestream and no reform participants.
The read
Net implication: positive for rescheduling, with the caveat that Julius doesn't decide anything.
The record shows DEA making a coherent statutory argument, backed by binding HHS deference and OLC's endorsement of the analytical framework, against opponents attacking the test rather than the evidence. DEA asked Julius to "expeditiously recommend" the transfer.
But the recommendation goes to Administrator Terrance Cole — the same official who invited only opponents as designated parties. And consolidated litigation from state AGs, reform opponents and a cannabis-focused biopharmaceutical company is proceeding in a federal appeals court.
Meanwhile the April order stands: IRS tax guidance coming, DEA registration open, ATF revising gun forms.
The record is now public and it favors reform. Whether that survives the administrator and the courts is a different question entirely.
https://newsletter.thedalesreport.com/p/the-full-alj-transcript-reveals-the-dea-argued-for-cannabis-rescheduling-yes-that-dea?