Happy (Hot)Boxing Day! Trump Moves to Reclassify Weed — But Didn't Biden Already Do That?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Matt: Now, Trump signs his executive order and acts like he's made the whole thing up, like it was his idea to reschedule to Schedule 3.

0:00:18 Matt: Honestly, the DEA has been such a thorn in the side of justice for this particular issue for so long that I'm happy to have them cut out of the game. This is one place where I'll take a unitary executive.

0:00:32 Thomas: Hello and welcome to Opening Arguments. This is episode 1219. I'm Thomas Smith. That over there is real life immigration attorney Matt Cameron. How you doing?

0:00:39 Matt: Happy Boxing Day! I still don't really know what that is, but that

0:00:41 Thomas: I don't either, but can we play The Boxer by Simon Garfunkel? One of my favorite songs.

0:00:49 Matt: Is a great song.

0:00:49 Thomas: That is a great, such a good song. God, I love that song.

0:00:50 Matt: Don't think it's that kind of boxing, though. I think you're supposed to take your gifts back or something.

0:00:52 Thomas: Oh, but I've already lila lied. Does that mean I have to take back these lila lies that I've already bought?

0:00:56 Matt: If you want a lot of La La Lies, you can listen back to Wednesday's episode.

0:01:01 Thomas: Yeah, it is Christmas and all that happening. So we were recording just after recording that for you. And so we are feeling the weight of 90 -something minutes of that kind of thing. But that's not what we're talking about now. We wanted to talk about the marijuana rescheduling thing. And it turns out it's deja vu all over again because we've kind of already done this.

0:01:21 Matt: We pretty well covered it. I was really kind of amazed. I mean, the media I know has, I was about to say insomnia. That's not the word I'm looking for. Amnesia. I have insomnia, that's right. Okay, I'll try that again.

0:01:25 Thomas: Very short memory. Oh, no. Amnesia, I think is what you're... You have amnesia and and amnesia, apparently. You have both.

0:01:34 Matt: Yeah, apparently. They come together. One does follow the other. But yeah, no, I just feel like there's all this news about how Trump is rescheduling cannabis from Schedule 1 to Schedule 3, and Biden did do this last May, or tried to, and I want to update you on what happened because it was a complete disaster and it didn't get covered at all when Biden tried to reschedule it. It's not Biden's fault. It is Biden's lack of unitary executive, ironically enough, if only he had one.

0:01:38 Thomas: It was a disaster when Biden tried to do it? Okay. Oh, yeah. No, darn. They just, they were working on polishing up and delivering that unitary executive just, and it, you know, it just arrived too late. It's like the Christmas present that's arriving right now as people are listening. Oh darn it. Just the day after Christmas, they got that unitary executor. Isn't that a coincidence?

0:02:08 Matt: It is a classic irony.

0:02:16 Thomas: You know, boy, well, I'm sure the the next president can enjoy it.

0:02:21 Matt: But since we are on vacation here, I thought it would be good to go back and listen because honestly, back last May, we talked about this at length, and I thought it was a great episode. I was really happy with the way it came out. So I think we should go back and listen to the explanation of what Biden did last May and how it compares to what Trump just did this week.

0:02:38 Thomas: Do So where are they now after that?

0:02:42 Matt: Yeah, we'll catch up. Yeah.

0:02:42 Thomas: Nice. I love it. All right. Well, that's what we're going to do. So after this break, go right into that episode and people will hear that.

0:02:49 Matt: That segment of OA 1031, if you want to play along at home.

0:02:52 Thomas: Wow. We were so young then.

0:02:52 Matt: We also talked about Eileen Cannon and how she's trying to stop the Trump trials. Yeah sad times.

0:02:56 Thomas: Well, she didn't, but also didn't. Yeah.

0:03:01 Matt: You don't have to listen to that part. Let's not relive that.

0:03:03 Thomas: Pay no attention to the part that's now super depressing in retrospect, although that's most of it. Alright, well, we'll take our break. Thanks so much for listening, everybody. Please please share the show. And thanks for supporting patreon.com/seriouspod. Really important. We can't thank you enough for the support. We hope you're having a great holiday. And when we come back, we will be in the past. A year and a half ago, right?

0:03:23 Matt: That's right.

0:03:23 Thomas: Something like that. More than a year. Oh, wow. I'm just going to do some math. Yeah. Wow. We were so young and carefree back then. No, not really. All right. After this break, you'll hear young us.

0:03:35 Ad: [Ad break 1 — ad music]

0:03:35 Clip: Matt, I see thematically you got high as all get out. You're just high out of your mind right now to celebrate. I can literally see the bloodshot eyes through the computer. Big news for potheads. Hey, potheads! Yeah. I got five on it, but that's about it. I wouldn't put much more than five bucks on this. Okay. All right. So yes, good news, bad news, mostly bad news. I gotta be honest with you. Mostly bad news, Thomas. The rescheduling of marijuana to schedule three is not progress and it's going to hold us up quite a lot. Holy moly. I thought it was good news. How did I, am I, did I just misread it or is this you're telling people stuff they wouldn't have heard? This isn't just me. Most advocates for cannabis and other substances are fighting against federal drug law would agree. I think that it needs to be unscheduled, that it has to be de -scheduled completely. And I will say upfront, I think I've said this before, but I am a strong advocate for the legalization, full legalization of cannabis. At this point, 24 states have full legalisation, and most of the rest of them have some kind of medical program. I do think it's abysmal. It's absolutely an embarrassment to the world that it is a Schedule I substance. And just to be very clear about what that means, everybody understands. I know we have a lot of listeners who may not be as interested in federal drug scheduling as I am. It means that you have a substance that has no known medical value and that has a high risk of abuse or addiction. Does that sound like cannabis to you? No, I mean, we briefly touched on that at some point. Look, I'm not going to pretend that people don't get addicted to cannabis in some way. Like I know the people, I am not an expert on this at all. And I'm sure I'll get argument no matter what I say, but like, I do know people who smoke way too much pot and seemingly can't stop, but they're out there. Yeah. I don't really, it's nowhere near as dangerous as, I don' know, virtually everything else. Yeah, you know, know what's not a schedule one substance tobacco which has no medical value and a high risk of abuse or addiction and will actually kill you which nobody's actually ever that's stupid the weed yeah it's I mean it's absurd there's so many things and caffeine really if it showed up on our shores right now I mean might have more medical value than nicotine but you know and of course our friend alcohol as well I've never been much of a drinker I don't really understand the appeal frankly but uh you know we've all got our vices they don't call alcohol like any sort of schedule whatever no yeah okay that's dumb it's controlled it's regulated but it's not not a scheduled substance. You know, this is all pretty arbitrary. And of course, if you know anything about the history of marijuana in particular, it's directly racist. It is grounded in racism. There's no question about that. Why is that not surprising? Yeah. I mean, it is the point at which you had all those jazz musicians and Mexicans, you know, that were smoking, being a bad influence on our white citizens. And there's that famous quote from John Ehrlichman, the Nixon ad. You ever hear that one about why they actually did it? No. Or maybe I have, but apologies. This is not a topic I'm particularly well -versed in. So pretend And I'm not a pot smoker and I don't have like any depth in this issue at all. Sure. We're here to explain things. We've got a lot to explain on this one. And I do want to do a full episode on scheduling and we'll get into a lot more of the details of legally how this works. But John Ehrlichman, the next in aid, said, we knew we couldn't make it illegal to be either against the war or black. But by getting the public to associate the hippies with marijuana and blacks with heroin and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. Sorry, did he administer a truth serum? Is this like during an interrogation or something? Yeah, no, he just went out and said it out loud because by that point, you know, he was well out of the administration, didn't matter. But that is just no question. I mean, the American Medical Association, just to give you the idea here, because I think there's been a lot of obfuscation and I think a lot lot of intentional, I wouldn't say covering up, but maybe rewriting of history in a lot of this. Cannabis was basically legal until 1937 and the American Medical Association opposed criminalizing it because they didn't see any harm to it really. And they wanted doctors to be free to prescribe and pharmacists free to dispense it because you could get a prescription for it then. And the major argument against it was Harry Anslinger. Was it jazz apparently? Yeah, it was. No, literally. No. I mean, Harry Anslingser literally said, their satanic music jazz and swing result from marijuana use this marijuana causes white women to seek sexual relations with negroes entertainers oh my god yes actually for madness right yep this is how we passed laws so this is the climate and then the tax act goes into effect and then it's not overturned until Timothy Leary gets arrested with some weed on him and he forces the supreme court to overturn the tax Act Nixon freaks out because at that point there's this period where marijuana might be legal. And so they passed the Controlled Substances Act. And as a stopgap measure, just to kind of make sure that they get it done, they make marijuana a Schedule 1 pending review by a commission, the Schaefer Commission. This is a blue ribbon panel that's put together by Nixon, former Pennsylvania Governor John Schaeffer. They look into marijuana and they come back with a report explicitly saying that it's time to decriminalize it and make sure that adults can use it, that it has no real harm. There's no reason to continue to criminalize it. That it should not be a Schedule I under any circumstances. And of course, Nixon ignores that for the reasons that we just found in that quote, because it was too convenient. And he just personally loved to drink, as you might know, and he thought that marijuana was bad. He just didn't like it. So that's how we got here. That's why marijuana is a Schedle I, is because of Richard Nixon and his personal vendetta against the blacks and hippies. Well, and the millions of deaths it's caused. Yeah, right, of course. Before 1937, there was no society. We were all so high, high, couldn't even manage. Nobody had jobs. And if Nixon had just gotten high once in a while, I feel like we would have been a lot better off. Yeah, but I love it. You really can't leave it to the Nixon administration. Like there's all these things that like, had I heard when I was a kid, I would have Been like, you conspiracy theorist, nut job. And it's like, no, there's like a quote of the person just saying, yes, we did this for the reasons that you would possibly think are the most conspiratorial, like weird. It's right there. Yeah. So that brings us of of course, to Joe Biden and the Biden administration. And of course as I'm sure you know about Joe Biden, it was instrumental in the 1994 crime bill, which criminalized the war on drugs to just a new level. And it's one of the many things that I think he needs to be accountable for. I think he's somewhat aware of that, but this announcement this week is confirming what he'd already kind of put on track. You know, this has been slowly in the works for a while now to de -schedule it from schedule one down to schedule three. I should say reschedule, not de-schedule. And schedule three drugs are defined as drugs with a moderate to low potential for physical and psychological dependence the abuse potential is less than schedule one and schedule two but more than four so examples of schedule three are would be um tylenol with codeine ketamine anabolic steroids and testosterone right it's just things that you need a prescription for but you know you're not gonna they're not going to kill you so sounds like progress because you're at least acknowledging that it has medical value that doesn't sound I'll be honest you feel free to tell me why I'm wrong. That doesn't sound too far off of what marijuana seems to be to me. Yeah, I see the argument. But at the same time, it is if we're in a society where tobacco and alcohol are also legal. Oh, yeah. But more to the point, though, the states have decided. This has already been decided. The majority of this country, if you're an American listening to this, you probably live in a place where it's legal in some form, whether it's with a card or not. And I mean, I've certainly, for the last 10, 11 years, I've been able to walk down the street to the marijuana store, a very nice boutique place where you can get lots of great products and it's not regulated and I don't have a problem with the FDA regulating it the way they do other products but it doesn't need to be criminalized for all kinds of reasons but Schedule 3 to be clear it's still a crime and of course one of the reasons I misunderstood with the whole scheduling stupid thing I was like just comparing it to those other things I was just like yeah I mean it's kind of similar to those substances but wait is codeine criminal wait what those are all criminalized in some sense or tie one up with codeine you have to go to Canada for that that. Not legal advice, but you can buy it in Canada. So I get it. I understand why people were excited about this news. And to a degree, I am too, because it's nice to finally see the federal government catching up to the fact that it does have actual medical value and to see the FDA and Health and Human Services willing to actually take it seriously. But at the same time, this is so frustrating because this is such a centrist -brained approach to this. It's such a live -brain answer to the problem. And you have, again, if the states hadn't already voted in such numbers and passed all these bills in such numbers, maybe that would be different. Maybe we look at a different scenario, but we have the reality we have. And by making it a schedule three, what you're doing is saying it needs to have a prescription. It's a prescription drug. And I think that's a problem because again, we do have an existing medical system. It is going to have to sort of come into compliance with existing FDA, DEA standards so they can handle prescriptions. It isn't that hard to get a card. I had one for a while, but it shouldn't be necessary at this point. Does this change the fact? Okay. So one thing, and you make great Great points. One thing that's been really stupid is any businesses formed around this in California, at least, and I imagine it's the same in all the states, they have to be like super cash based and they can't have like there's a bunch of things that are just really dumb where we've already. And as you say, if the majority of states are already doing this, and yet they have to be in this weird gray market status of not being able to get banking the same way that other businesses can and having all these weird tax things that happen, that is dumb. And so does this change that at all, or will that still be dumb? It does actually quite a lot. That was one thing I wanted to talk about is 26 U .S. Code 280E, which just to start with, this portion of the U .K. code does not allow for any tax deductions or credits. It's just to start with let's just start there so you can't run yourself like a regular business and get the regular you know that's incredibly stupid so like if you buy I don't know a computer to do business with it's like you can'T deduct any anything is that wait and what yeah what is the logic behind that well that is if if your trade or business consists of trafficking and controlled substances within the meaning of schedule one and or two so if we take it down to schedule three then they're out of this but yeah they there was a way to criminalize people people that sell drugs, basically, that you can't deduct for your drug business. I'm sure there was some other policy reason for it. But so this alone is going to save the industry billions and billions of dollars. So that's a start. But to your point about the banking, you know, they're still going to be hesitant because you're still in a nasty gray area where you're going to have 24 states that have marijuana stores that just have places you can walk in without a prescription and just buy it. And you're Still talking about drug dealers, those all those those people who are selling that stuff are considered to be trafficking a controlled substance. And so banks are still going to be hesitant. I don't think that's, we should expect that's going to change. I did buy a few things for a while and I think you have to use like your debit card. It was like, what, why am I using my debit card? What in the world is this? What year is it? And even that requires some kind of hack. Yeah. It's, it's really not, it'S, itS, yeah, it's absurd. So I should talk a little bit about what this announcement actually means in practice and how it plays out, and also about what Joe Biden promised versus what we're getting. And I'm sorry, you know, again, I know that we both agree that we have a moral obligation at this point to do anything we can to stop Donald Trump, especially some of the stuff we've been hearing recently. But this is a particularly frustrating issue for me, because Joe Biden said in his campaign that he would decriminalize the use of cannabis. In the same sentence, same paragraph, he said that he would reschedule it as a Schedule 2 at the time. I'm not sure how you can even comport those two things together. So he was from the beginning, he was making promises about how he was going to at least change the status one way or another, which is fine. I mean, that's, you know, he certainly that's the minimum he can do. The easiest thing to do, as I said, would be to deschedule it, to take it off the schedule completely. But instead, what he does is he starts off in October 2022. You might remember there was this announcement, again, frankly, meaningless announcement, I'm sorry, but that he was going to pardon everybody serving sentences for federal or D .C. marijuana possession charges. And do you know how many people were serving sentences for federal ORDC? You're going to tell me it's zero, isn't it? It is zero. No one was released from prison because that's not really a thing. People aren't doing federal time for possession only. They did expand it later to some distribution and sale charges. And again, 6,500 people got the felony off the record for the possession. That's not nothing. That's fine. I have no problem with that. And he was, of course, encouraging state governors to do the same, but the blue states that want to do it have already done it, for the most part. But at the same time, they were starting to push this idea, the process of getting it going to actually re -examine the entire status of marijuana in the federal government. So in August 2023, Department of Health and Human Services issued a very lengthy recommendation to move from Schedule 1 to Schedule 3. Now this recommendation goes to the DEA. And this is another issue I have with the whole thing, because the DEA has its own system of administrative courts, which we'll be talking about when we talk about drug scheduling. And these administrative courts have a lot of leeway to decide what the scheduling should should actually be for any given substance. This process takes forever. I was looking at some recent rescheduling. There was one for a substance I'd never heard of that took about 10 years. And it's estimated that if they really drag their feet, something like this could take nine or 10 years. Wow. And of course, that requires an administration that wants to do it. So I think it's politically popular at this point. I think that they should want to do It. But you never know. You can't count on that. And it's going to cost hundreds of millions of dollars probably throughout this this entire process to move this thing along, when all you could do is just take it off the schedules and say, look, the states have decided we're here. I'm sorry, I want to make sure I understood. So are you saying the thing Biden just announced could take 10 years to go into effect? If it has to go all the way through the DEA process, if there's appeals, if There's, you know, because of this administrative judge thing, just based on prior rescheduling. And I think they're going to be motivated to move This along faster than others. But I'm just saying this is not a matter of months, necessarily. I don't think it actually will take that long. I think there is more motivation than that. But these announcements so often when the media makes these things, I think that people think tomorrow that there's going to be some kind of change when you wake up. Yeah, no, sadly. And this is just kind of one in a series of announcements about what they've been doing. And these are anonymous sources. Nobody's even come out, I don't think, publicly and said to confirm this, but DEA is moving on this. Yeah. That was in the original announcement. It wasn't like Joe Biden came out and said it. They did get somebody to confirm it, But yeah, the Associated Press broke this. So yeah. And again, this is so frustrating because it is May of 2024. And a lot of people are very, very mad at Joe Biden right now. And how nice would it be? How easy would it been to just come out and say, well, look at that. Legalize it. States have spoken. Let's do it. And he can really do that all by himself? Nothing else he has to do? He could de -schedule it and then done? Done? Well, he can't. No, no. But he could make the recommendation. He could push it through in that direction. He can't actually take it off the schedule himself. But there's a lot of power with the executive to, you know, to make these things happen the way that, and, you Know, he stated where he wants it to go. Wait, what is the process for that? So it is, it's a long process, you know, no matter what. Congress could actually just pass something and that would be the easiest thing. And honestly, there isn't a bipartisan support at this point. I think that it could actually happen. I'm just saying that why take this weird middle ground approach when it's already illegal in so many places? Why subject it to this regime of prescriptions and criminalization? And I guess one of the other reasons I should disclose why I'm so mad about this is that you can still get deported for possession and distribution of a Schedule III substance. And if you work in a legal marijuana dispensary in Massachusetts, you can still be denied citizenship because you're a drug dealer. Cool. Yeah. And at one point, Jeff Sessions, for a few years, actually single-handedly issued an executive order saying that if you have used marijuana, if you admit to using marijuana want to, in the five years before you apply for naturalization, we will automatically find that you are not a person of good moral character. Oh, right. Yeah. So enormous amounts of power to continue this Nixon bullshit, frankly. Learning about drug scheduling is honestly, I mean, on top of obviously my everyday work, but I learned about drug scheduling first before I started doing this. And it was one of the things that really turned me against the federal government in a very real way. I got to tell you, because it's just way too much power. And I should, of course, the Supreme Court plays into this. We can't talk about this without talking about the Supreme Court, obviously, because there's a very bad decision that has upheld a lot of this as well. 2005, Gonzalez v. Raich, very strange decision because it was the liberal justices in the majority. And this is the one Thomas dissent, the one Clarence Thomas dissent that I think I completely agree with, maybe just because of the way it came down. I know. We've talked about this before, but Clarence Thomas has a very 19th century view of the Commerce Clause. This case was based on the fact that even though, and the facts are infuriating, I hope I've sound as mad as I am about all of this. To someone who doesn't know you, imperceptible. But to me in the audience, I'm actually scared right now. Worried that you're going to burst a blood vessel. There's nothing sharp within my reach, I promise. Angel Raich, person who took this to Supreme Court, had, I believe, a brain tumor, but some kind of very severe medical issue. She's still with us, I think. And her doctor in the lower court had testified that this is the one thing that works for her. They've tried everything else that cannabis actually is effective. And the federal government prosecutor in California, they took it up. And here's the Thomas dissent, which I think just, I'll just read it very quickly, this part of it. Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers. Respondents' local cultivation and consumption of marijuana is not commerce among the several states. You got it, Clarence. Can't really argue with that. Wait, she was growing her own or something? Yep, she once. Oh, come on. I think she had six plants. Yep. She's not selling it. No. Like, literally, how does the federal department have any say over that? Essentially, in Raich, because it's just like marijuana itself is of such federal concern. From the Stevens majority. And again, this is liberal justices and Scalia wrote his own concurrence because he couldn't just bring himself to join the liberal majority. But just so you can see where Stevens is coming from. Congress can regulate purely intrastate activity within the state that is not itself quote unquote commercial in that it is not produced for sale if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. And so he was drawing from Wickard v. Filburn, which is punishing a guy for growing too much wheat, even though he was just feeding it to his cows and violating the wheat quotas. Oh, wheat. Oh, I was like, too much weed. Somebody just keeps their cows high all the time. It's not, why is this a crime? I can keep my cows really high. Yeah, if I'm going to eat them anyway. I was going to say, yeah, you can butcher them. You can do all, God knows what, but I can't get my cows super high. What kind of government is this? And again, this is at a time when California had a medical marijuana program. So now he's got to get prescriptions for each one of the cows individually. It's a huge pain in the ass. And I think it is actually maybe one of the places where conservatives are occasionally honest about states' rights because this is absolutely something you know we've talked about the states of the laboratory of democracy right and the meth laboratory of tomorrow and that's what O'Connor said in her dissent essentially is that like the states have spoken this is something they want to try. O'Connor said herself, I wouldn't have upheld this law I wouldn't if I were in the legislature vote to make it illegal in any sense but this is what they did and this is the precedent we still have is that the federal government even when the States have made a clear finding with a popular vote. Many of these things, including in Massachusetts, were a referendum that the federal government can still go ahead and bust up dispensaries and arrest people for marijuana if they want to. Now, there's this sort of a detente right now where they're not doing that. There's a policy that has defunded any enforcement against, it's just kind of a standing policy from Congress that has now been passed on a bipartisan basis. It used to be something only the Democrats were introducing, but it keeps them from enforcing against medical marijuana programs. So at least there has been that protection. But one book I can recommend for everybody is Smoke Signals, A Social History of Marijuana. It's a great book. I've learned a lot from it, and it has a lot of really infuriating information. And I had not appreciated the long history of activists who went to prison and suffered badly to try to push this forward, to push policy forward. And it's part of why I'm upset today, is because it seems like the sacrifices deserve more than a prescription. A lot of the conversation around this week has been that we're pushing in the right direction, that finally we're undoing 100 years of damage, and we're trying to push things forward and to recognize the reality of the states. But obviously, this is actually something that I think Congress, even now, maybe might be able to agree on because there are a lot of Republicans who are invested in the weed industry at this point. There are a lot of Republicans coming from states where it's been legalized, and there are a lot of right-wing people who smoke weed. This is a fairly bipartisan issue at this point. Congress could immediately just de-schedule it. That would be fine. Yeah. So then how much is it valid to blame Biden for this? Well, he could also, though, he could come out and say, I do not believe at this point that there's any reason that it should be scheduled at all. And I'm going to direct my agencies to look into that and see if there's a way we can de-schedule it. And maybe we get that kind of pressure going. But if Congress sees that what the executive wants to do is schedule three, then I don't think they have a lot of incentive necessarily to jump in. I don' t know. Maybe I might be unfair. I'm just trying to get it clear. Yeah. Because I've always heard that, honestly, I've heard it for the longest time that the president, and this way predates Biden being president, but like the president could de -skedule this with a stroke of the pen and then now sounding like not really. No, there's quite a process to it. Yeah, plus don't you think there's every chance the Supreme Court would mess that up too. Is there going to be some way they'll be like, nah, you can't do this actually. Maybe, maybe. I mean, it really depends, I guess. The DEA though, in these administrative hearings, they can take months of testimony if they want to. They can create a massive record that I think would be very hard for the Supreme Court to disagree with because it would have to be based on actual findings at that point. And if they can support those findings, which the science is more than enough, maybe the Supreme Court wouldn't have that much to say about it. I don't know. The findings that everyone who's against us is super lame. Like it's proven that if you are in favor of criminalizing marijuana still, you're just a dweeb, man. Like, what are you doing? Those are my findings. Yeah, exactly. Scientists all agree. You suck and you're harshing our mellow. That's true. I mean, I really, I have no problem with the FDA regulating these products. I've been a little concerned when I see some of these, the labeling is terrible on some of these edibles you can buy. I think that a reasonable person who doesn't know a lot about marijuana might buy some of these products and consume like an entire cookie or whatever when you're only supposed to eat a piece of it. I've used it for insomnia for some time and there's an insomnia product that's labeled as an insomnia product. CBN is particularly effective, by the way, if anybody's interested in the use of THC products for this. And this has some CBN in it, but it has 50 milligrams of THC per item. That's a lot. That is a lot, I mean, five milligrams is normal for an inedible and 50 milligrams is an overwhelming amount. I mean, that is like, you should know. And it doesn't really clearly tell you that very well on the front of the packaging. So I have no problem with this kind of regulation and making sure that we know where it's being grown and where it's coming from and that cartels and environment involved. That's great. That's fine. I mean, the FDA can regulate alcohol the same way and send cigarettes, but that shouldn't have to be a crime. I guess that's where I'm coming from. Totally agree. I'm just trying to think, how does this work? Is this an executive agency that Congress has decided has this power, but they could pass something that just bypasses all that. Right. And that's actually always been one of my concerns about drug scheduling is that the DEA, this is a very unusual power. Typically the executive does not have the power to create crimes, but this is one place where the executive branch can actually make something a crime without Congress's input. And that is concerning. If you had like a particularly nutty president at some point, I mean, maybe like a Mormon president, right. That decided that caffeine should be criminalized. I mean this is pretty far out there, obviously, but or nicotine under my example, it could happen and you could have no Congress congressional involvement. So there's a lot of administrative law detail that is not particularly interesting about this, but there are a couple of options the DEA has. The one I was talking about that would take the longest would be through the administrative law courts, but it is possible that they could sidestep even the notice and comment period, which is usually required for a change like this. And there are options. It's a little strange, but under treaty obligations, there's actually an option that they can redo it through order. I know. They did that actually with Epideliacs. I don't know if I'm going to say that right, but Epidemiacs was an epilepsy medication that included THC, I believe. And that was kind of an odd one. But I know that there is some other process where they can sidestep some of this, especially with the politics being what they are right now and the desire of being there. I'm just saying, worst case, if they went the full path and they went all the way through the way that they could do it, it could take years. And it's very unpredictable. Let's make a deal. If Republicans are going to roll back abortion laws to 1864 anyway, why don't we roll back marijuana laws to 1864? Yeah, 1936 even. Yeah. Yeah, let's just go for it. There's one other little absurd thing. So the FDA, as I mentioned, has already approved and the DEA signed off on a couple of products that actually have THC in them, including Marinol, which is synthetic THC. And from what I've read, Marinol is very unpleasant. It is not a fun thing to take. And it was used primarily for AIDS patients to help them deal with some of the side effects of other things. And it always seems so strange to me that the FDA was fine with something that was synthesized THC, like just pure THC but not with the actual natural product and the difference is that actual natural cannabis has CBD it has terpenes, it has this really interesting blend of stuff that makes the thing that we call cannabis sativa and just isolating THC and making it into a pill is not the solution but they thought that was fine. Just the hypocrisy and the misunderstanding and the willful misdirection and all this stuff is just very frustrating I guess to me as somebody who's been watching this for a while. If we could eventually move our government down from like average age of 84 to like 73 -ish, I think we can make progress here. That'd be great. And if anybody listening wants to run for office, if this kind of thing motivates you the way it motivates me, then I'd love to hear from you.

0:29:15 Ad: [Ad break 2 — ad music]

0:29:15 Thomas: Okay, Matt. Well, that was a fun blast from the past, what has held up, what hasn't held up. Give us the report card on the the Mattisode of the Biden rescheduling. And also update us on what happened with all that.

0:29:26 Matt: Well, first of all, I did recover from my allergies. That was not the best day of recording. A little rough off there on the voice. But yeah, so that was not an executive order, as I might have noted in the episode. What Biden did was an announcement saying that he's going to be urging the federal government to move forward with rescheduling, right? So Trump went there and actually went for an executive ordered. But let me tell you about everything that happened in the meantime between that episode and today, because I actually, and I love to keep up on this stuff, scheduling, as you know, is one of my most interesting things. But I missed this somehow, how that there was a gigantic train wreck around the rescheduling effort. I predicted in last May that this was going to take a lot longer than anybody thought. And boy, was I right. I told you that this kind of thing can take many years and it is, you know, even with or without Trump doing what he just did. And as we'll talk about, maybe it's possible he can actually move this along. But, you know, we were talking about the DEA's scheduling process and how it requires this special court that the DEa has and how the DEA and FDA had no incentive to want to do this. So I will say that I called this because there are a lot of people saying that Biden could actually get this done by the election or even by the time Trump was inaugurated. And I just didn't think that was really possible, just knowing administrative law, knowing bureaucracy the way that I do. So vindicated on that one. I don't think I got anything wrong.

0:29:57 Thomas: You're a huge fan. Sweet.

0:30:42 Matt: People can let me know if they think I was way off on anything, but I think I Was sticking with what I knew. So I was expressing hope at the time. We did a second segment that we're not going to play here because we don't need to play it now, but just a quick update that we did in the same episode. That's right. Yeah, I'm just not playing that. But the Democrats were supporting a bill that I was strongly encouraging the president to get behind and anybody else who supports justice and actual decriminalization, which remains the answer. But what we get is Donald Trump with this executive order. And of course, you know, he loves executive orders. Biden didn't think to do it this way because he can't actually, in Biden's view, the previous view of how the president operates, the president can't direct independent agencies to do anything, right? He's not supposed to be able to do that. But of course, we have the unitary executive now.

0:30:44 Thomas: There wasn't any math questions. So I guess, yeah, not that. That's where all the wrong stuff was. Oh, yes.

0:31:26 Thomas: That old stupid idea. Wow, what an idiot. Biden, once again, it's just like a recent episode where it's Biden felt constrained by the law.

0:31:34 Matt: The law, sucker.

0:31:37 Thomas: Idiot. Yeah.

0:31:37 Matt: That's what happens.

0:31:38 Thomas: But honestly, but seriously, though, next Democratic president, there's no law. So just do whatever. But for good. Do good stuff. Who cares? Just make him do it. Make him stop you, I guess. And they will because all of a sudden the Supreme Court will be like, whoa, whoa, this is way different than when way worse things were happening. But it was the guy we like, way different, entirely different, but whatever, like make them do it. We'll put them through the motions. No reason not to.

0:32:06 Matt: I'm not trying to hand it to ISIS here, but Trump did finish off the year at least doing something popular. Yeah. One of my favorite Joel tweets, yeah. But yeah, no, we've been talking about, unfortunately, Donald Trump policies for all of 2025. This is the first one that I completely and enthusiastically agree with is getting this done as quickly as possible. Now, again, as we discussed in the episode, I don't agree with this result, but it's better than nothing if we can get this rescheduled. I'd much rather have it off the schedules and decriminalized, but that's going to have to be up to Congress. Even Donald Trump with his unitary executive can't actually say it's not a crime anymore entirely.

0:32:10 Thomas: I just simply not have to hand it to her. What is it? Yeah. That's a fan to drill tweet or something. So good. That was a great one. Not yet. We will see.

0:32:45 Matt: So not yet, we'll see. So what happened in the meantime, before we get to what Trump actually did, Biden directed the different executive agencies to work together, do what they could. Now that requires the DEA to go through this extremely long process of putting it through it. Essentially, they have an administrative court that reviews scheduling. And this thing is not built for speed, like no executive courts are. And I mean, I don't know how many other drugs they were looking at for scheduling.

0:33:10 Matt: This is docket number 1,326 or something, but

0:33:11 Thomas: Yeah, how much business is there to this court?

0:33:15 Matt: A lot of stuff you've never heard of. We even talked about that in that episode. But in this one though, So it doesn't help that the DEA was directed to be a proponent of rescheduling, right? That was what Biden is saying in his orders here, or his marching orders to them. But Ann Milgram, the head of the DEA, was a former attorney general of New Jersey, and apparently is not really keen on marijuana rescheduling or legalization at all, and did not do anything to move things along the DEA. So they had a hearing scheduled for December. They were reviewing Things. They subpoenaed the FDA because the FDA refused to participate voluntarily, which I thought was also kind of a red flag. The HHS had already released a report under Biden saying, and this is part of what would move things forward last time, saying that they thought that it had medical value and that it's time to assess scheduling, and that was kind of required to move this forward. FDA should have participated, but they required a subpoena, and DEA, mistakenly or otherwise, issued the same subpoena four times to one person instead of subpoenaing the four different people they were supposed to bring in. The judge did not like that and scolded them on the record, telling them, you know, obviously get the subpoenas right. This was administrative law judge John Mulroney. Now, of course, just like immigration judges, it's a slightly different category, but it's still an executive branch judge. That's not a judicial judge. And what he did is he set up testimony for January 21st of 2025. And that did not happen because there were a group of

0:33:17 Thomas: Yeah, I guess so. Oh, what the hell?

0:34:36 Matt: Proponents of rescheduling from the industry. And the industry is very powerful at at this point. They're making good money. And they were able to expose, and I'd love to do an entire episode on this. I'd like to find an expert if anybody is out there who is familiar with what happened in this DEA proceeding. I would love to get into this because it sounds pretty interesting. But the industry basically learned that Ann Milgram, the head of the DEA, had been in touch with anti -rescheduling people, with opponents of rescheduling off the record, and been doing ex parte communications the way they weren't supposed to be. And the judge was moved to say that she was not actually a proponent, that the DEa should be substituted out for somebody else that some other part of the government that Biden could more reliably control.

0:35:00 Thomas: What the hell? Huh. For Cheech and Chong.

0:35:13 Matt: Yeah, right. For proponents of marijuana, people that could actually come in and do the thing that Joe Biden had said should be done by the federal government.

0:35:19 Thomas: Yeah, you'd think.

0:35:21 Matt: And the judge denied that and said he didn't have the power to do that, which is probably true. But he said, you can take an appeal. So they were taking an interlocutory appeal, which, of course, winds things up quite a while. And then the judge in August of this year retired, and there was no appointment made for another judge to take this case. Case. And just to make things even more confusing, a couple of months after the Biden announcement and the episode that we recorded in May, Jarkeesie came out, which is a case we haven't really talked about yet that we should talk about at some point. But Jarkeeseie threw into doubt kind of the whole concept of these kinds of administrative courts that can make criminal findings, essentially, that can put things toward being crimes. Basically, the Supreme Court found that the Securities and Exchange Commission could not just have in -house tribunals to do things that it essentially amounted to serious civil penalties that are basically quasi -criminal for fraud actions, right? That people are being denied the right to a jury trial because of the way this whole thing was set up.

0:36:12 Matt: And this is going to come in, we were talking about it in the context of Trump's attempts to take on independent agencies. We're talking about quasi -judicial bodies, which wasn't really on the table when we were taking about the FTC and FCC and things like that. This is essentially a quasi - judicial body, as I understand it. And so this is all kind of uncertain. But what Trump has done to sidestep all of this, because this is a quagmire, basically, Biden makes this announcement. And remember, this is as of 2022, not just 2024, but as of 2022, Biden had directed HHS to make findings about this. It took HHS its sweet time to get around to that. And then 2024, as we talked about last year, he does this, he pushes it forward, and then Trump is elected and comes in and nothing else happens all of the year. And now Trump signs his executive order and acts like he's made the whole thing up, like it was his idea to reschedule to Schedule 3 when, in fact, anybody who's listened to Open Arguments knows that this was something that was on the table for quite a while, years now. So the way that Trump is proposing to do it, it's not entirely clear. I'm looking at the executive order from December 18th, 2025 that just came out. It's exciting in the sense that it's recognizing openly kind of the HHS findings about how it has really good medical value, how it clearly has medical use. And we can't say it's a Schedule 1, which of course, to remind everybody, requires a finding that there is no medical value no acceptable medical use for a substance. And also there's a high rate of abuse or addiction, which you can't really find with marijuana the same way you can with other

0:36:13 Thomas: Interesting. Yeah.

0:37:27 Matt: Scheduled ones like heroin or cocaine.

0:37:28 Thomas: It is absurd that it's Schedule 1. Like, that is just absolutely absurd.

0:37:31 Matt: And it remains. And we talked a little in the excerpt there about the history of how we got there. So he's directing research. It's all very good. It's hard to argue with any of this. But the actual action item in the executive order says, the attorney general shall take all necessary steps to completely rulemaking process related to rescheduling marijuana in the most expeditious manner in accordance with federal law, including including 21 U .S .C. 811. So the thought is that it doesn't seem like he's interested in restarting the DEA administrative court process. He might actually just be publishing a rule in the Federal Register that designates, which is something that I didn't really consider because the DEa process exists when we're recording this episode. I didn't really think about going that far outside of how you're supposed to do it.

0:38:12 Thomas: Because back then we used to give a shit about the rules.

0:38:15 Matt: Yeah, nothing's supposed to be done. Honestly, the DEа has been such a a thorn in the side of justice for this particular issue for so long that I'm happy to have them cut out of the game. This is one place where I'll take a unitary executive, honestly.

0:38:26 Thomas: They've made it. So if we ever get power back, we're going to use it. Just we should. I shouldn't say we'regoing to because who knows what the milquetoast Democrats will do. But we should just use it, just useit for good. And it is what it is. You know, you do everything you can because this is ridiculous. So not only was the the person kind of dragging their feet, but then you're saying she was like talking to the other side and not act like it's just gosh, I got to say, now that the Supreme Court and the public and the Congress and everybody has allowed Trump to be what he is, it does make Democrats look like absolute spineless nothings. Yeah, it really does. Like now it's good. They've kind of made that true, even though I mean, it's true somewhat, but I don't I don'T think it was totally fair because we thought we should follow laws. But when you see what Trump gets to do and what, you know, with impunity, it does make you think, well, why the hell were we putting up with having this person that doesn't even support what Biden's trying to do?

0:39:19 Matt: Yeah, no, I agree. I mean, I can certainly see the frustration in this case. It certainly has come clear. So potentially, if he wants to do it by emergency rulemaking, he could do this within five days. I'm in it already five days past. Hasn't happened yet as a time of recording, but we've got holiday in the middle. That would be a little weird. I don't think emergency rulemaking is appropriate. And I think they're setting themselves up for failure if they do it it that way. No matter what, if they try to do it by rule, I expect this is going to be challenged because there is a pretty vigorous opposition group. What's it called? Let me make sure I get the name.

0:39:25 Thomas: Kill joys for no more fun

0:39:48 Matt: That's right. Also known as the Smart Approaches to Marijuana, Preventing Another Big Tobacco. That is their approach. Now, to a point, I get it because big marijuana is becoming a problem. Big cannabis is a very large industry and it is only going to get bigger and it does need to be regulated, as we talked about in the episode.

0:39:52 Thomas: Having right but I mean it's calling it the same as tobacco it's like well it's not but it's not as harmful like there's plenty of other companies that are popular that sell products that people you know that are big it's poisoning the well to link it to

0:40:12 Matt: Right, it is. And you can can go your entire life consuming cannabis without actually smoking it if you want to. So there's that too. But yeah, if they sue over the way the Trump administration does this, if they cut off the notice and comment period, if the Administrative Procedures Act violation, which are pretty easy to find in situations like this, then potentially this could tie it up for quite a long time still. So the Trump Administration should proceed with some caution at least to try to move this forward. We will see. We'll see where this all goes. But it's encouraging. It's certainly good to see the ball being moved forward. But I get really annoyed when people people are acting... First of all, I've been seeing headlines like Trump legalizes marijuana, which obviously is pretty far from the truth. It's no more true than it was when Biden made this announcement. But also the news stories, we'll just mention in maybe one sentence that Biden did this last year and then talk about this Trump EO and don't even really talk about the proceedings in between. I just feel like the coverage has been pretty paltry.

0:41:05 Matt: Oh, there it is.

0:40:58 Thomas: Tobacco yeah yeah I have not heard anything about this at all well there you go

0:41:06 Matt: That's what I have to say about it.

0:41:08 Thomas: That's what oa is good for cover the legal news that you just don't hear I mean there is a lot going on so I get it but still. All right. Well, that's really interesting. It's cool to hear some old timey audio of us, you know, the scratchy vinyl sound. I guess final question on the rescheduling. So what do you anticipate just to get this clear? What do you anticipated happening this time? Do you think the way he's doing it will mean this actually works or is it still going to go a similar way?

0:41:12 Matt: We're trying. We'll try. It really depends on how they do the rulemaking. So I'll be watching pretty closely to see how they deal with it. I don't think that he's interested in restarting the DEA process. I'd be very surprised. And if he does, maybe they'll find some way to jam that through as quickly as possible and expeditiously. I mean, he's using the word expeditious here. We'll see what that means. Biden, and when they made the DOJ announcement, they were very happy to just say, here's like a 36 -page explainer of what we're going to be doing, and we're gonna be following the rules exactly. And this has nothing like that. So who knows?

0:41:57 Thomas: Hmm.

0:41:57 Matt: We will see. I'll just keep you updated.

0:41:59 Thomas: All Right. Well we'll take a break and then we'll get to a fun footnote.

0:42:06 Ad: [Ad break 3 — ad music]

0:42:06 Thomas: I said it was a fun note, but as usual, I don't really know what the footnote is. So is it fun? Did I just, did I just sell people? Okay, thank God. You haven't made a liar out of me.

0:42:10 Matt: It is fun. I think it is fun. So I wanted to talk about the original war on Christmas, because it is Boxing Day. We've all all just enjoyed. Of course, in one way or another, it's America where maybe some gifts were exchanged this week, but it is December 26th. And I wanted to remind everybody that the war on Christmas did...

0:42:30 Thomas: There's a war and you're not fighting it hard enough.

0:42:32 Matt: That's right. I think so far Christmas has been winning. It seems like they're prevailing.

0:42:35 Thomas: We had a chance to throw Christmas into Mount Doom, but we didn't. You know, we were too tempted by Christmas and now here it is. I, for one, love Christmas, but I think it's funny that they always try to make it like there's a War on Christmas, even though universally everyone is fine with it and loves Christmas and there's no War on Christmas. But now, ironically, I like pretending that I'm going to start a War on Christmas because they don't want me to.

0:42:57 Matt: Right. No matter about how anybody that they think is warring with Christmas feels, they could not possibly hate Christmas as much as the English parliament in 1647, which banned the celebration of Christmas. Now I'm going to get to the American tie -in in a second here, but just think about how much fun it would be to live in a country run by people who would ban Christmas and replace it with a day of fasting because it is a popish festival with no biblical justification, which is correct.

0:43:22 Thomas: Popish. Love it.

0:43:23 Matt: Popish, it's a Catholic thing. And a time of wasteful and immoral behavior. Just to give you the idea about the American Puritans. Of course, there was briefly that time when the Puritans were basically running in the interregnum when they're running England for a little while. And then of course, everybody hated them and they had to leave as religious refugees because they were so annoying. And of course they came here here to Boston, naturally. So in colonial America, the pilgrims come in and they hated Christmas so much that they spent the first Christmas in the New World building. It was like the first thing that they did just to show that like they're going to be getting to work. The first structure in the New World began construction on Christmas Day in 1620. So just went from there. But the thing I really want to talk about was 1659. And I'm pulling up and I will link to so everybody can see this glorious law for themselves. The law, 1659, we have a penalty for keeping Christmas. And it's written in, of course, old -timey font with old -imey lettering.

0:44:37 Thomas: You have, you must work.

0:44:39 Matt: As aforesaid, every such person so offending shall pay for every such offence five shillings as a fine to the county. And whereas, not only at such times, but at several other times also, it is a custom too frequent in many places to expend time in unlawful games, as cards, dice, etc., it is therefore further ordered, and by this court declared, that after publication hereof, whosoever shall be found in any other place within this jurisdiction playing at cards or at dice, Contrary to this order, she'll pay as a fine to the county the sum of five shillings."

0:45:06 Thomas: And if you're going to die, you'd better do it. Decrease the surplus population. Bah humbug.

0:45:16 Matt: Right. Are there no workhouses?

0:45:18 Thomas: Exactly, what the hell? This is crazy.

0:45:21 Matt: Yeah, Scrooge had nothing on the Puritans, absolutely nothing. And the idea that the celebration of Christmas is an offense as great as gambling, like it's equal to gambling for the Puritan, and that was a pretty serious offense.

0:45:31 Thomas: Yeah, well, this is nuts.

0:45:33 Matt: Yeah, no, the original war on Christmas in one of the bluest cities in America, this is where it comes from. So take heart that we are no longer living in a Puritan country. I'm very very happy about that myself.

0:45:42 Thomas: Oh, just looked. We are again now. So, okay, we were, be grateful that we weren't for a little bit.

0:45:49 Matt: Let's not do it again.

0:45:50 Thomas: I agree.

0:45:51 Matt: Do it for Christmas.

0:45:52 Thomas: They knew how to fight that war on Christmas. Good on them. So if you want to draw inspiration in battle, that's where you can find it.

0:45:58 Matt: The true super soldiers of the war on Christmas, the Puritans. I did want to, of course, report that was revoked in 1681. That is not actually still the law in Boston, just to be very clear about that. So we all survived.

0:46:10 Thomas: True war on Christmas, everyone. All right. Well, that was a lot of fun. Thanks so much for listening, everyone, thanks, Matt, as always. I hope you're having a great holiday weekend, everybody. And from those of us here at OA, have a great time and see you next week.

0:46:23 Matt: Happy Boxing Day and Happy New Year.

0:46:24 Thomas: Well, we'll be on again before New Year, right? Yeah.

0:46:26 Matt: Oh, yeah. Well, Happy New Year anyway.

0:46:28 Thomas: Happy New Year again.

0:47:06 Matt: Under Biden, they had... Okay, hold on. Actually, let me answer your question. Hold on. Let me back this up. Okay.