Steps Required for U.S. Attorney General Pam Bondi to Deschedule Marijuana Under the Controlled Substances Act (21 U.S.C. § 811), with HHS Secretary Robert F. Kennedy Jr. and DEA Administrator Terry C

OG article by dale schafer

November 13, 2025

I. Introduction

This memorandum outlines the statutory procedure by which U.S. Attorney General Pam Bondi, acting through the Drug Enforcement Administration (DEA) under Administrator Terry Cole, could deschedule marijuana from the federal Controlled Substances Act (CSA). The process is governed entirely by 21 U.S.C. § 811, which requires a binding scientific and medical recommendation from the Department of Health and Human Services (HHS), currently led by Secretary Robert F. Kennedy Jr. Only after receiving a favorable HHS recommendation may the Attorney General initiate and complete formal rulemaking under the Administrative Procedure Act (APA) to remove marijuana from the CSA schedules.

II. Statutory Framework: 21 U.S.C. § 811

Section 811 establishes a collaborative, science-driven process for modifying the CSA schedules. Although the Attorney General holds the statutory authority to add, remove, or transfer substances between schedules, that authority is limited by mandatory consultation and rulemaking requirements. Specifically:

• The Attorney General must obtain a scientific and medical evaluation and scheduling recommendation from HHS (§ 811(b));
  

• The HHS recommendation is binding on scientific and medical matters; and
  

• The Attorney General must conduct APA-compliant rulemaking before any change becomes effective.
  

Under DOJ regulations (28 C.F.R. § 0.100), the Attorney General has delegated her scheduling authority to the DEA Administrator—here, Administrator Terry Cole.

III. Steps Required for Descheduling

1. Initiation of the Proceeding

Under § 811(a), proceedings to remove marijuana from the schedules may be initiated by:

• The Attorney General (Pam Bondi) on her own initiative;
  

• The Secretary of HHS (Robert F. Kennedy Jr.); or
  

• Any interested party through a petition to the DEA.
  

Once initiated, the DEA—under Administrator Cole—would open a docketed proceeding to evaluate whether marijuana should be removed from Schedule I.

2. Mandatory Referral to HHS

The Attorney General must request from HHS Secretary Robert F. Kennedy Jr. a scientific and medical evaluation of marijuana and a formal recommendation regarding its appropriate schedule. This evaluation, typically performed through the FDA and informed by NIDA, must address the eight statutory factors in § 811(c), including:

1. Potential for abuse;
   

2. Scientific evidence of pharmacological effects;
   

3. Current scientific knowledge;
   

4. History and pattern of abuse;
   

5. Scope, duration, and significance of abuse;
   

6. Risk to public health;
   

7. Dependence liability; and

8. Relationship to other controlled substances.

This referral is mandatory and must occur before any proposed rulemaking.

3. Binding Nature of HHS Recommendation

Under § 811(b), the HHS recommendation is binding on the Attorney General “as to such scientific and medical matters.”

• If Secretary Kennedy concludes that marijuana does not meet the statutory criteria for control, Attorney General Bondi and Administrator Cole must proceed toward descheduling.
  

• If HHS recommends continued scheduling, Attorney General Bondi is legally barred from removing marijuana from the schedules.
  

In short, the HHS recommendation is the scientific predicate for any lawful descheduling.

4. APA Rulemaking Led by DEA

Upon receiving a favorable recommendation from HHS, the Attorney General—through Administrator Cole’s DEA—must conduct notice-and-comment rulemaking under 5 U.S.C. § 553 and 21 C.F.R. Part 1308. This includes:

• Publishing a Notice of Proposed Rulemaking (NPRM) in the Federal Register, citing 21 U.S.C. § 811 as authority;
  

• Describing the HHS findings and rationale for descheduling;
  

• Allowing a public comment period and, if warranted, holding an administrative hearing;
  

• Reviewing the record and issuing a Final Rule removing marijuana from 21 C.F.R. § 1308.11 (Schedule I).
  

Upon publication of the Final Rule, marijuana would be officially removed from the CSA schedules effective on the specified date.

5. Interagency Review and Coordination

During this process, Attorney General Bondi and Administrator Cole would coordinate with:

• HHS Secretary Robert F. Kennedy Jr., as the scientific authority;

• The Office of National Drug Control Policy (ONDCP), for policy alignment; and

• The Office of Management and Budget (OMB), for regulatory review through OIRA.

These reviews are procedural but can affect both timing and framing of the final action.

6. Publication and Legal Effect

When the final rule is published in the Federal Register, it amends the Code of Federal Regulations and formally removes marijuana from CSA control. After the effective date, marijuana is no longer a “controlled substance” for purposes of the CSA, though other federal statutes could still apply (e.g., tax, FDA, or interstate commerce provisions).

7. Judicial Review

Under § 877, any party aggrieved by the final rule may petition for review in the U.S. Court of Appeals. The court will apply the APA’s arbitrary and capricious standard, reviewing whether:

• The AG/DEA acted within statutory authority;

• The record supports the decision; and

• The process complied with § 811 and the APA.
  

IV. Constraints and Alternatives

1. No Direct Executive Action: Even with Pam Bondi as Attorney General, she cannot simply issue an order to deschedule marijuana. The process must pass through HHS and follow the rulemaking procedures.
   

2. Congressional Authority: Congress retains the power to directly amend the CSA to remove marijuana, bypassing the administrative process entirely.
   

3. Treaty Considerations: U.S. obligations under the 1961 Single Convention on Narcotic Drugs may be considered, but are not a statutory bar under § 811.
   

4. Delegation to DEA: Administrator Terry Cole carries out the Attorney General’s scheduling powers but remains bound by the same statutory requirements and HHS findings.
   

V. Conclusion

Under 21 U.S.C. § 811, Attorney General Pam Bondi may lawfully deschedule marijuana only after receiving a favorable, binding recommendation from HHS Secretary Robert F. Kennedy Jr. affirming that marijuana no longer meets the statutory criteria for control. Following that, DEA Administrator Terry Cole must conduct and complete APA-compliant rulemaking to remove marijuana from the CSA schedules. The process is procedurally rigid and science-driven—Congress designed it to prevent unilateral executive action on controlled substance scheduling.