$MSOS fam,
As much as we all want the instant gratification of S3 dropping, a defensible legislative process needs to be followed for it to stick.
If DOJ goes straight to final rule today, there would be a stay attempt before the effective date, and it would have a highly probable chance of succeeding.
Here’s the procedural reality:
The AG doesn’t get to publish a Final Order and have it effective the same day. Under the APA, rules generally have at least a 30-day delayed effective date. And rescheduling cannabis is almost certainly a “major rule” under the Congressional Review Act (>$100M annual economic impact), which requires Congress to receive the rule and triggers a 60-day window before it can take effect. So realistically the timeline looks like: AG signs Order → Federal Register publication → effective date set 30–90 days out.
SAM has retained former AG Bill Barr to sue to reverse rescheduling the moment a final rule is issued . Barr files for a TRO/preliminary injunction the same day, and then S3 is in legal limbo for a long long time if a say is issued.
The most defensible fast-ish route is to use the existing administrative record but clear the procedural logjam rather than build a new one from scratch.
Concretely:
1.DEA Administrator Terry Cole resolves the interlocutory appeal that’s been sitting on his desk, he already has the authority; he just hasn’t set a briefing schedule. Cole can call for expedited briefing, deny the movants’ requested relief (disqualifying DEA as proponent), and clear the cloud in weeks.
2.Appoint a new ALJ (or the AG can designate one from another agency under the APA’s cross-detailing provisions).
3.Argue that with HHS’s scientific determinations binding DEA under the OLC’s May 2024 opinion, the record is already sufficient and further evidentiary hearings are unnecessary.
4.Issue the final rule.
This leans on the May 2024 OLC opinion that HHS’s scientific/medical findings bind DEA pre-rulemaking, and that the HHS two-part “currently accepted medical use” test is legally sufficient. This is the path DEA was already on before everything seized up. Timeline: likely 6 months if pushed hard.
The defensibility trade-off is worth it though: this preserves the administrative record that makes the rule hardest to overturn on APA grounds later, tldr Bill Barr pounds sand.