Biden Urges Reclassification of Marijuana, Jackley Freaks Out; Trump Urges Same, Jackley Shrugs

Since before President Trump took office, many of us—the Attorneys General of Nebraska, Indiana, Iowa, Idaho, Kansas, Louisiana, Oklahoma, and Wyoming—have argued against the rescheduling of marijuana as a Schedule I drug. See July 2024 Comment of Nebraska and 10 Other States. We all believe the science surrounding marijuana—which has become only more clear in recent weeks—properly establishes it as a Schedule I drug, and we have seen firsthand the harm the drug has caused in our communities. The negative impacts of expanded marijuana use, especially on children and adolescents, are worrisome. And the public policy challenges, such as the exponential increase in difficult-to-combat driving under the influence, are both significant and serious. We have conveyed our concerns to the Administration, and we are grateful for the Administration’s good faith consideration of our views.

Because of our long-held views, we are concerned with the issuance of this Executive Order, which directs the U.S. Attorney General to “take all necessary steps to complete the rulemaking process related to rescheduling marijuana to Schedule III.” We will evaluate the order closely to determine how we can best continue to engage, protect the public health, and ensure the safety of our citizens [Nebraska Attorney General Mike Hilgers, press release, 2025.12.18].

Funny: South Dakota Attorney General Marty Jackley signed that July 2024 letter and said rescheduling marijuana was wrong when President Joe Biden was doing it. Under President Biden, Jackley agreed with Hilgers and other state AGs that expanding the use of marijuana, even just for medical purposes, was bad:

Nothing material—in either the realm of science or law—has changed since 2016 when DEA last concluded that it was appropriate to maintain marijuana’s placement on Schedule I. Indeed, HHS implicitly recognizes as much, insofar as it advocates for the jettison of a longstanding, data-driven-and-science-based standard employed by DEA in 2016 and its replacement by a much less rigorous test of its own creation, tailor-made to permit marijuana’s rescheduling. That advocacy, embraced by OLC’s recent opinion, is seriously misguided. It threatens to undermine the federal regulatory regime that ensures the medicine Americans rely on is safe and effective rather than false cures peddled by snake-oil salesmen.

Ultimately, because there has been no material change in facts or law, rescheduling marijuana (after DEA has previously and consistently declined to do so for more than half a century) would be agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

…Even HHS recognizes that the “abuse of marijuana produces clear evidence of harmful consequences” and its consumption creates a “risk to public health.” HHS Basis for Rec. at 7, 8. It is difficult to deny that increasing lawful access to marijuana—something rescheduling it to Schedule III would undoubtedly accomplish—will damage the public health and exacerbate serious societal ills already plaguing the Nation.

…Moving marijuana to Schedule III will effectively provide the marijuana industry with a substantial tax cut—in some respects, a rescheduled marijuana will receive more favorable federal tax treatment than alcohol, tobacco, and gambling. This will cause a tremendous expansion of the existing marijuana industry. And that expansion will lead to the increased consumption of marijuana, which in turn causes a panoply of negative effects.

A few examples suffice to illustrate the gravity of the problem. Marijuana causes myriad health problems. It is particularly harmful to child and adolescent development and has links to both mental health conditions like schizophrenia as well as physical ailments such as cancer and heart disease. Expanded marijuana access also increases motor vehicle accidents and creates difficult problems in enforcing laws that prohibit driving while intoxicated. Nor are its second-order effects much better—marijuana is linked to rising homelessness and welfare dependance, reduced workplace productivity, and increases in anxiety and suicidal ideation.

In sum, a Final Rule rescheduling marijuana to Schedule III would be both unlawful and ill-advised. We offer the following comments in support of both assertions, and urge the Attorney General and DEA to decline to issue any Rule that would move marijuana off Schedule I [Nebraska Attorney General Mike Hilgers, letter to U.S. Attorney General Merrick Garland, co-signed by South Dakota Attorney General Marty Jackley and nine other state AGs, 2024.07.22].

But now that Trump is pushing rescheduling, Jackley mutes his opposition:

Thursday at 4:30 CST, Attorney General Jackley, along with other Attorneys General, had a conference call with the White House regarding the implementation and effect of the President’s Executive Order and greatly appreciates President Trump’s Administration’s open and continued dialogue with the Attorneys General. It was emphasized that President Trump’s interest is to facilitate research on the medical value of marijuana made possible by the rescheduling of marijuana.

It is important to recognize that the federal rescheduling of marijuana from a Schedule I to a Schedule III drug does not criminally legalize marijuana under federal law. Also, current federal law also does not permit a licensed physician to prescribe marijuana until marijuana receives FDA approval.

Marijuana use and possession is also illegal under South Dakota state law for recreational use, and permissible only for medical purposes with a valid prescription, a medical card, and from a licensed medical marijuana facility [South Dakota Attorney General Marty Jackley, press release, 2025.12.19].

Just one year ago, Jackley took a pretty strong position against rescheduling marijuana. Some of his colleagues have the courage to maintain that opposition, but Jackley’s talk about snake-oil salesmen and risks to public health has given way to fawning over the dictator in Washington.