The 10th  in a series of 10 articles for cannabis law report

Separation-of-Powers Issues in State Cannabis Authorities

RN Collins | https://www.linkedin.com/in/rn-collins/

 

 

Legislative Brief Series

I. Introduction

State cannabis regulatory agencies occupy an unusual position in the constitutional architecture of state government: they exercise legislative, executive, and quasi-judicial powers simultaneously. They promulgate binding rules with the force of law, execute licensing and enforcement responsibilities, and adjudicate contested applications and disciplinary proceedings. This concentration of authority in a single agency—common across regulated industries but magnified in cannabis regulation by the political sensitivity of the subject matter, the rapid pace of market development, and the persistent incoherence between enabling statutes and agency practice—has generated recurring separation-of-powers friction at both the state and federal levels.

This brief examines the principal categories of separation-of-powers conflict arising in state cannabis regulatory authorities: the structural governance disputes that have destabilized leading agencies; the delegation and subdelegation problems created by broadly worded enabling statutes; the quasi-judicial functions of cannabis boards and the procedural requirements they generate; the impact of the post-Loper Bright abolition of Chevron deference on federal cannabis rulemaking; the major questions doctrine’s implications for large-scale administrative cannabis reform; and the emerging tension between executive rulemaking and legislative authority at the state level. It concludes with legislative design recommendations for structuring cannabis agencies to minimize constitutional exposure while preserving regulatory effectiveness.

II. Structural Governance Disputes: The Massachusetts Cannabis Control Commission

The most extensively documented state-level separation-of-powers failure in cannabis regulation involves the Massachusetts Cannabis Control Commission (CCC). The CCC was created by the state Legislature following the 2016 voter initiative legalizing adult-use cannabis and was structured as a five-member independent commission with appointment authority divided among three constitutional officers: the Governor (one commissioner), the Treasurer (one commissioner), and the Attorney General (one commissioner), with the remaining two commissioners jointly appointed by the three elected officials.¹

A. Structural Ambiguity in the Enabling Statute

In June 2024, Massachusetts Inspector General Jeffrey Shapiro wrote directly to the Legislature, describing the CCC as a “rudderless agency without a clear indication of who is responsible for running its day-to-day operations.”² Shapiro’s office identified vague and contradictory language in the CCC’s enabling statute as the root cause: the statute failed to clearly delineate whether administrative and operational authority rested with the Commission chair or the executive director, and whether the chair’s authority to direct day-to-day operations was coequal with, subordinate to, or superior to the Commission’s collective authority.³ Shapiro characterized the structural deficiency as “unclear language that causes confusion as to what actions belong to the chair of the cannabis commission and which belong to the executive director.”⁴

The consequences were severe and demonstrably impaired the agency’s core regulatory functions. Multiple commissioners resigned before their terms expired. In September 2023, Treasurer Deborah Goldberg suspended CCC Chair Shannon O’Brien following allegations of misconduct, triggering a multi-year legal battle over whether the Treasurer had legal authority to remove an officer appointed under a statute that did not clearly confer removal power on any single appointing authority.⁵ O’Brien was reinstated by a court in October 2025 after the court found that Goldberg lacked authority to remove her.⁶ The inspector general documented that the executive director failed to notify commissioners of a cannabis worker’s January 2022 death at a licensed facility until the following October, a lapse attributed to governance confusion rather than willful concealment.⁷ A March 2025 inspector general report found the CCC had failed to collect more than $1.7 million in fees—a direct fiscal consequence of administrative dysfunction.⁸

B. Legislative Response: S.2722 and H.4206 (2025 Session) — Status and Recent Developments

The Massachusetts Legislature responded with two competing structural reform bills. The House passed H.4206 (H.4187 as amended) on June 4, 2025, by a 153-0 vote.⁹ The Senate passed S.2722 on November 19, 2025, by a 30-7 vote.¹⁰ Both bills reduce the CCC from five members to three and eliminate the Treasurer’s appointment authority—directly addressing the appointment structure that had generated the O’Brien governance crisis. The House bill would have all three commissioners appointed by the Governor, with only the chair as a full-time position. The Senate bill divides appointment authority between the Governor (two commissioners, including the chair) and the Attorney General (one commissioner), and makes all three commissioners full-time with salaries benchmarked to senior state positions.¹¹ The Senate bill also draws an explicit separation between policy/adjudication and enforcement functions: the chair cannot participate in or supervise investigations that might later come before the CCC as adjudicator, and the executive director retains independent authority over enforcement and operations.¹²

As of the date of this brief, the House and Senate versions are in conference committee—which held its opening meeting on January 14, 2026. Both reflect the same core structural diagnosis articulated by the Inspector General: the original enabling statute’s multi-authority appointment structure, combined with vague delineation of commissioner versus executive director powers, created systemic separation-of-powers dysfunction.¹³

[GAP UPDATE — February 2026]: In addition to the structural reform bills, the Massachusetts CCC on December 11, 2025 approved final regulations for Social Consumption Establishments, which took effect January 2, 2026, upon promulgation by the Secretary of the Commonwealth.¹³ᵃ This regulatory action—completed amid the ongoing governance crisis and the pendency of the conference committee—illustrates the agency’s continuing operational capacity even while its foundational enabling statute remains under legislative revision. The simultaneous existence of agency rulemaking activity and conference committee deliberations over that same agency’s structural authority presents a recurring separation-of-powers question: whether regulatory actions taken during a period of structural ambiguity may be challenged on the ground that the acting commissioners lacked properly constituted authority. Legislative counsel advising states undertaking similar structural reforms should address this question explicitly by including transitional authority provisions in reform legislation.

[GAP UPDATE — November 2026 Ballot Consideration]: A citizen initiative petition to repeal Massachusetts’s adult-use cannabis legalization has gathered sufficient signatures to qualify for the November 2026 ballot, having obtained certification from the Secretary of State of 78,301 signatures in December 2025.¹³ᵇ If enacted, the repeal initiative would render moot the structural reforms under consideration by the conference committee—but would not eliminate the CCC’s jurisdiction over medical cannabis. The concurrent pendency of legislative structural reform and potential voter repeal creates a layered separation-of-powers tension between legislative action, agency authority, and direct democracy that is not addressed in either pending bill.

The Massachusetts experience provides a clear template for the kinds of statutory ambiguities that generate governance failures in cannabis agencies: (1) multi-authority appointment structures with no clear hierarchy or removal mechanism; (2) absence of clear delineation between the board’s collective authority and the chair’s individual authority; (3) conflation of enforcement and adjudicatory functions within the same leadership structure; and (4) absence of statutory resolution procedures for intra-commission disputes.

III. Agency Restructuring and Executive-Legislative Friction

A. Washington State: WSLCB Restructuring Proposal

The Washington State Liquor and Cannabis Board (WSLCB) presents a different but analytically related structural problem. The WSLCB is a three-member board appointed by the Governor to six-year terms, with the board serving as both the final decision maker on cannabis rules and policy and as quasi-judicial adjudicator of contested license proceedings.¹⁴ This dual role—combining policy-making and adjudicative functions in the same board—raises internal separation-of-powers concerns: the board simultaneously sets the rules that licensees must follow and decides the contested cases in which those rules are applied.

In January 2026, Senator Curtis King introduced legislation in the Washington State Senate to fundamentally restructure the WSLCB by partitioning its authority across two separate five-member boards (the Washington State Cannabis Board and the Washington State Liquor Board) and a regulatory agency under an appointed Director.¹⁵ The Senate Labor and Commerce Committee received testimony on the restructuring bill in early February 2026, with the committee chair ultimately declining to advance it in committee.¹⁶ The proposal reflects a legislative judgment that the combined regulatory and adjudicative authority of the current structure impairs both institutional accountability and the quality of policy-making.

Washington State law formally describes the WSLCB as exercising “quasi-judicial” authority: the board serves as “the final decision maker in adoption/change/revocation of rules and policy that govern the industries we regulate,” while simultaneously serving as the final decision maker in legal cases involving licensees, including contested enforcement proceedings.¹⁷ The intermingling of legislative, executive, and adjudicatory functions within a single three-member board—with no meaningful internal separation between rule-making and case-deciding—raises due process concerns for licensees who must appear before the same body whose policies they may be challenging.

B. New York: Agency Rulemaking Authority and the State Administrative Procedure Act

New York’s Office of Cannabis Management (OCM) and Cannabis Control Board (CCB) have encountered separation-of-powers friction through the proliferation of informal agency guidance that has not been promulgated through the State Administrative Procedure Act (SAPA) notice-and-comment process. In DNP-Z, Inc. v. New York State Cannabis Control Board et al., Index No. 908870-24 (Albany County Supreme Court, Apr. 14, 2025), the court ruled that the CCB and OCM acted improperly when they denied a dispensary license based on a “May 2024 Supplemental Policy Guidance” document limiting each “entity and majority owner” to only one retail dispensary license during the application window.¹⁸ The court held that this one-license-per-owner policy, because it had not been promulgated as a formal rule through the SAPA process, was without legal authority.¹⁹

The ruling illustrates a recurring separation-of-powers problem in cannabis regulation: agencies under intense operational pressure to manage high-volume licensing processes resort to informal policy guidance as a substitute for formal rulemaking—bypassing the notice-and-comment requirements that constitute the legislature’s mechanism for supervising agency lawmaking.²⁰ The CCB has since adopted formal delegation resolutions authorizing the chair to approve individual licensing decisions and the OCM to deny certain applications,²¹ but the DNP-Z ruling demonstrates that informal guidance that functions as a rule—particularly guidance that denies rights or creates eligibility barriers—must comply with SAPA to be legally effective.

A companion structural issue in New York is the legislative delegation question: the MRTA grants the CCB the authority to “delegate any functions, powers and duties” to the OCM executive director, with the exception of promulgating rules and regulations.²² The CCB has exercised this delegation authority through formal resolutions—including Resolution 2025-57, delegating to the OCM the power to deny certain adult-use cannabis applications.²³ Whether the MRTA’s delegation provision adequately constrains the scope of subdelegation and preserves the CCB’s accountability for licensing decisions remains an open question in New York courts.

C. Texas: Executive-Legislative Power Struggle over Hemp THC Regulation

Texas has experienced the most acute state-level executive-legislative separation-of-powers conflict over cannabis regulation in recent years, centered on Governor Greg Abbott’s September 10, 2025, Executive Order GA-56, which directed state agencies—principally the Department of State Health Services (DSHS), the Texas Alcoholic Beverage Commission (TABC), and the Department of Public Safety (DPS)—to adopt new rules for hemp-derived THC products following the failure of legislation in the Texas Legislature.²⁴ Lieutenant Governor Dan Patrick and Senate leaders mounted a public campaign against the executive order, arguing that only the Legislature can materially redefine what cannabinoids are lawful to retail, what quantities may be sold, and who can possess them—that executive rulemaking cannot substitute for statute when the effect is to criminalize or decriminalize specific THC content thresholds.²⁵

The Texas dispute crystallizes the core state-level separation-of-powers question in cannabis administration: when the legislature has failed to act—whether through deadlock, adjournment, or deliberate inaction—to what extent can the executive branch fill the regulatory vacuum through agency rulemaking or executive order? The “intelligible principle” analysis applicable to state nondelegation claims (discussed below) determines whether existing statutory grants of authority to health agencies are sufficiently bounded to support the executive’s claimed regulatory power, or whether the governor’s directive constitutes an unauthorized exercise of legislative authority.²⁶

[GAP UPDATE — Federal Hemp Definition, November 2025]: The Texas executive-legislative conflict over hemp THC products has been partially superseded at the federal level. On November 12, 2025, Congress enacted Section 781 of the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026 (H.R. 5371), which amended the Agricultural Marketing Act’s definition of “hemp” to restrict total THC (including THCA) to 0.3 percent on a dry-weight basis and to impose a 0.4 milligram per container limit on final hemp-derived cannabinoid products.²⁶ᵃ These provisions take effect November 12, 2026. Because the Controlled Substances Act defines marijuana to exclude “hemp” by cross-reference to the Agricultural Marketing Act, the narrowed hemp definition will reclassify many currently marketed delta-8, delta-10, THCA, and similar products as Schedule I controlled substances upon the effective date. This federal action substantially reduces—but does not eliminate—the space for state executive agencies to regulate hemp-derived THC products through executive order: once the federal definition takes effect, state agencies operating under pre-existing hemp frameworks may find that the products they were attempting to regulate are no longer “hemp” under federal law, potentially subjecting them to CSA enforcement regardless of state executive action. The separation-of-powers question in Texas thus takes on a new dimension post-November 2026: the federal statutory floor imposed by H.R. 5371 constrains state legislative and executive choices alike, raising Supremacy Clause questions about state frameworks that permit products that the amended federal definition would recategorize as controlled substances.

IV. Delegation, Nondelegation, and the Intelligible Principle Test

A. Federal Nondelegation Doctrine

The federal nondelegation doctrine, derived from Article I’s vesting of all legislative power in Congress, prohibits Congress from delegating its legislative authority to executive agencies unless it provides an “intelligible principle” to guide the agency’s exercise of that delegated power.²⁷ The Supreme Court has not struck down a federal statute on nondelegation grounds since 1935.²⁸ In FCC v. Consumers’ Research, 606 U.S. ___ (2025), the Supreme Court, in a 6-3 decision authored by Justice Kagan, upheld Congress’s delegation of revenue-raising authority to the Federal Communications Commission and the agency’s sub-delegation to a private administrator, declining the Fifth Circuit’s invitation to revive the nondelegation doctrine and reaffirming the viability of the intelligible principle standard.²⁹ Justice Kavanaugh concurred, observing that the Court’s articulation of the major questions doctrine in West Virginia v. EPA, 597 U.S. 697 (2022), and the reinforcement of independent judicial review in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), had already provided sufficient structural checks on agency action to address the concerns animating nondelegation claims.³⁰

For cannabis regulatory agencies, the federal nondelegation doctrine’s continued dormancy means that broadly worded enabling statutes—including the CSA’s broad grants of scheduling authority to the Attorney General/DEA—survive constitutional challenge under the intelligible principle standard. The CSA directs DEA to schedule substances based on findings regarding “potential for abuse” and “accepted medical use”—terms that courts have recognized as providing sufficient statutory guidance to satisfy the intelligible principle test, notwithstanding their lack of precise definition in the statute.³¹

B. State Nondelegation Doctrine

State constitutions vary in the stringency of their nondelegation requirements, with some states imposing stricter standards than the federal intelligible principle test. Several state courts have applied heightened scrutiny to cannabis enabling statutes, particularly where the statute vests broad and largely unconstrained discretion in a cannabis regulatory agency with minimal legislative standards guiding the exercise of that discretion.

State enabling statutes that vest agencies with authority to “regulate” cannabis “in the public interest” or to establish “reasonable” licensing criteria without more specific congressional-style standards present potential nondelegation vulnerability in states with stricter nondelegation doctrine. The Massachusetts CCC’s structural governance failures, the New York CCB’s informal policy guidance problems, and the WSLCB’s joint rule-making and adjudicatory authority all reflect, in part, the absence of sufficiently specific statutory standards to guide and constrain agency discretion—precisely the deficiency that state nondelegation doctrine exists to address.³²

Cannabis legislative counsel should audit enabling statutes for the presence of intelligible principles governing each major agency function: licensing criteria, fee-setting authority, enforcement prioritization, social equity program design, and product regulation. Vague standards such as “promote public health” or “advance social equity” may survive intelligible principle review in most jurisdictions, but they increase litigation risk and reduce the agency’s ability to defend discretionary decisions when those decisions are challenged in court.

V. Quasi-Judicial Functions and the Administrative Adjudication Problem

A. The Dual-Function Agency

Every major state cannabis regulatory agency exercises quasi-judicial authority: it conducts adjudicatory hearings on license denials, revocations, and disciplinary actions; issues final orders that bind licensees; and in some states serves as the final administrative decision-maker before judicial review. This concentration of quasi-judicial power in the same agency that promulgates the rules being enforced and that licenses the entities appearing before it implicates the due process requirements of both the federal and state constitutions.³³

The WSLCB’s structure is illustrative: the same three-member board that “has the final decision maker in adoption/change/revocation of rules and policy” also “holds a quasi-judicial role… as the final decision makers in legal cases involving the industries we regulate.”³⁴ This structural arrangement—a board that makes the rules and adjudicates challenges to those rules—is constitutionally permissible under federal due process doctrine (Withrow v. Larkin, 421 U.S. 35 (1975)) so long as the agency can demonstrate an ability to be functionally neutral in its adjudicative role, but it creates recurring perceptions of unfairness and generates litigation over the procedural adequacy of agency hearings.

The Massachusetts Inspector General’s recommended separation of enforcement and adjudicatory functions at the CCC reflects a growing legislative consensus that cannabis agencies, given their political sensitivity and the high financial stakes of licensing decisions, benefit from structural separation of these functions.³⁵ The Massachusetts Senate bill (S.2722) would codify this separation by prohibiting the CCC chair from participating in or supervising investigations or other fact gathering that might later come before the board as adjudicator—a structural separation analogous to the wall between prosecutorial and adjudicatory divisions required in federal agencies.³⁶

B. Emergency Rulemaking and Procedural Shortcuts

Cannabis agencies under operational pressure have frequently resorted to emergency rulemaking authority to implement regulatory changes without the notice-and-comment period required for ordinary rulemaking. New York’s OCM has repeatedly used emergency regulations—including the enforcement regulations adopted in 2024 implementing new enforcement powers obtained through the state budget—as a mechanism to get rules in place quickly while the formal rulemaking process is underway.³⁷ Emergency regulations have defined validity periods and must ultimately be replaced by permanent rules through the SAPA process; however, their serial renewal can effectively substitute for formal rulemaking for extended periods, raising separation-of-powers concerns about whether agencies are using emergency authority to bypass the legislative oversight embedded in the notice-and-comment process.

The California State Auditor’s February 2025 performance audit of DCC’s Local Jurisdiction Assistance Grant Program documented the risks of insufficient procedural safeguards in agency grant administration—finding inappropriate expenditures persisting across multiple jurisdictions and requiring the return of $4.1 million in unspent or ineligible funds.³⁸ While a grant administration audit rather than a rulemaking audit, the findings illustrate the broader problem of insufficient procedural constraints on agency discretion in cannabis regulation.

VI. Post-Loper Bright Implications for Federal Cannabis Rulemaking

A. The End of Chevron Deference

In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court formally overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), ending four decades of judicial deference to agency interpretations of ambiguous statutes and directing courts to independently determine the best reading of statutory text.³⁹ The decision fundamentally altered the relationship between courts and federal regulatory agencies: agencies can no longer rely on claimed expertise or reasonable interpretation to resolve statutory ambiguities in their favor; courts now perform independent statutory interpretation, with agency views entitled only to the weight of Skidmore persuasion rather than Chevron deference.⁴⁰

For federal cannabis rulemaking, the consequences are significant. The DEA’s rescheduling process requires HHS and DEA to make statutory findings regarding “potential for abuse” and “currently accepted medical use in treatment in the United States”—terms that the CSA does not define.⁴¹ Prior to Loper Bright, courts reviewing a final rescheduling rule would have deferred to the DEA’s interpretation of these undefined terms if the agency’s reading was reasonable. Under Loper Bright, a reviewing court will independently assess what “potential for abuse” and “currently accepted medical use” mean under the statute, without deference to the agency’s chosen definitions.⁴² Legal commentators have noted that this shift “makes the litigation wholly unlike previous challenges to federal action regarding marijuana rescheduling” and raises the bar on the administrative record the DEA must compile to survive judicial review.⁴³

The ArentFox Schiff analysis of the December 2025 executive order notes that the DEA “will still need to finalize a rule supported by an administrative record that addresses material comments and issues preserved during the aborted 2024-2025 hearing process,” and that litigation under the APA challenging the scientific basis for the rule’s conclusions about accepted medical use and abuse potential “is quite possible.”⁴⁴ Loper Bright means that such APA challenges have real prospects of success because courts will not defer to the agency’s resolution of statutory ambiguities—they will decide those questions themselves.

B. The Major Questions Doctrine

The major questions doctrine—articulated by the Supreme Court in West Virginia v. EPA, 597 U.S. 697 (2022) and elaborated in Biden v. Nebraska, 600 U.S. 477 (2023)—requires agencies to point to clear congressional authorization when asserting regulatory power over “issues of vast economic and political significance.”⁴⁵ The doctrine operates as a clear-statement rule: courts require clear congressional authorization for major agency actions, and will not find such authorization in ambiguous statutory text or gaps in legislative design.⁴⁶

For cannabis rescheduling, the major questions doctrine is potentially applicable. The economic stakes of rescheduling—eliminating 280E tax burdens for a $30 billion industry, opening banking access to hundreds of thousands of businesses, reshaping research authorization for a major class of therapeutic candidates, and potentially affecting the stock exchange listing of hundreds of companies—are precisely the kind of “vast economic and political significance” that the doctrine targets.⁴⁷ Organizations challenging a final rescheduling rule under the APA are expected to argue that the statutory terms “potential for abuse” and “currently accepted medical use,” however interpreted, do not provide sufficiently clear congressional authorization for an action of this scale.⁴⁸

The doctrinal tension between the major questions doctrine and cannabis rescheduling is not resolved by the December 2025 executive order. The EO directs the Attorney General to complete the rulemaking “in the most expeditious manner in accordance with federal law”—language that has been interpreted as directing DOJ to work within the existing statutory framework rather than invoking any novel authority, which would reduce (though not eliminate) major questions exposure.⁴⁹

C. Post-Chevron State-Level Implications

States are not directly bound by Loper Bright, which construes the federal APA. However, state courts applying comparable administrative procedure acts may look to Loper Bright for guidance in determining the appropriate degree of deference to state agency interpretations of ambiguous cannabis enabling statutes. The DNP-Z decision in New York—striking down an OCM policy guidance as unauthorized under SAPA—represents the state-law analog of the Loper Brightshift: courts independently reviewing whether agency action falls within the authority conferred by the enabling statute, without deferring to the agency’s construction of its own enabling legislation.⁵⁰

VII. The Federal Executive Order and Separation-of-Powers Limits

The December 2025 executive order directing the Attorney General to expedite cannabis rescheduling tests the constitutional limits of executive power in the administrative law context. As the Congressional Research Service has noted, the President cannot directly change marijuana’s scheduling status under federal controlled substances law—that authority requires DEA to complete a formal rulemaking process under 21 U.S.C. § 811.⁵¹ The executive order is legally effective only to the extent it directs an officer within the executive branch to exercise authority that Congress has already delegated to that officer; it cannot itself reschedule marijuana, modify the statutory framework, or alter the procedural requirements of the APA.⁵²

Legal analysts have debated whether the DEA Administrator can lawfully skip the formal hearing process and proceed directly to a final rule under the executive order’s “most expeditious manner” directive. The Vicente LLP analysis identifies two procedural pathways: the “treaty exception” under Section 811(d)(1), which would permit the Attorney General to bypass the standard rulemaking procedures on the ground that schedule III placement is required to comply with international treaty obligations; and the standard Section 811 rulemaking process, which requires notice, comment, and the completion of administrative hearings.⁵³ The treaty exception pathway would be significantly faster but more vulnerable to APA challenge; the standard rulemaking pathway preserves procedural integrity but takes longer and leaves the record available for litigation attack.

[GAP UPDATE — January 2026]: As of January 6, 2026, DEA filed a joint status report confirming that the interlocutory appeal arising from the January 2025 hearing cancellation “remains pending with the Administrator” and that “[n]o briefing schedule has been set.”⁵⁴ᵃ The ALJ who had been presiding over the rescheduling hearing retired, leaving DEA without a presiding officer to resolve the appeal. Organizations such as Smart Approaches to Marijuana have retained former Attorney General Bill Barr to challenge any final rule, signaling that post-promulgation APA litigation is likely regardless of which procedural pathway DEA selects.⁵⁴ᵇ The combination of a pending interlocutory appeal with no briefing schedule, the absence of a presiding ALJ, and anticipated litigation from organized opponents means that the executive order’s “expeditious” directive faces substantial procedural friction that neither the text of the order nor the December 2025 executive action resolved.

The separation-of-powers question embedded in this choice—whether the executive branch can use a directive to the Attorney General to effectively prioritize one statutory interpretation over another in ways that prejudge the administrative record—is directly implicated by Loper Bright: courts reviewing the final rule will independently evaluate whether the Attorney General’s statutory interpretation of the CSA is correct, without deference to the agency’s determination, and will assess whether the rulemaking process was adequate to support the agency’s findings.⁵⁴

VIII. Legislative Design Recommendations

The separation-of-powers issues surveyed in this brief converge on several actionable legislative design principles for cannabis regulatory authorities.

Structurally, cannabis enabling statutes should clearly delineate: (1) which appointing authority has the power to remove commissioners and under what standards; (2) whether administrative and operational authority rests with the commission chair, the executive director, or a divided allocation between both, with a clear tiebreaker for disputes; (3) whether enforcement functions and adjudicatory functions are separated within the agency’s internal structure or assigned to different organizational units; and (4) what subdelegation authority the agency has and what procedures govern the exercise of delegated powers.⁵⁵

Substantively, enabling statutes should provide sufficiently specific legislative standards to guide each major agency function—licensing criteria, fee-setting, enforcement prioritization, product regulation—to satisfy state nondelegation requirements and to provide a statutory basis for defending agency decisions in post-Loper Bright judicial review.⁵⁶

Procedurally, legislatures should require formal rulemaking through the state APA for any agency guidance or policy that creates eligibility criteria, imposes licensing restrictions, or otherwise affects the legal rights of applicants or licensees—eliminating the temptation to use informal guidance as a substitute for rulemaking and precluding the DNP-Z problem of legally unenforceable policies.⁵⁷

On the federal side, Congress should consider whether statutory language in the CSA’s scheduling provisions is sufficiently clear to survive post-Loper Bright and major questions doctrine scrutiny for the scale of regulatory change represented by cannabis rescheduling—and whether direct legislation, rather than continued reliance on administrative rulemaking, is the more durable path to resolving the fundamental federal-state cannabis policy conflict.⁵⁸ Congress should additionally address the November 2026 transition created by Section 781 of H.R. 5371, which will reclassify a substantial category of hemp-derived products as Schedule I controlled substances on a fixed date with no administrative hearing or notice-and-comment process—creating a statutory certainty absent from the rescheduling rulemaking but raising parallel questions about congressional delegation of definitional authority to the FDA for cannabinoid classification lists required within 90 days of enactment.⁵⁸ᵃ

Endnotes

1. GBH News, State Lawmakers Weigh Independence, Structure of Cannabis Control Commission as They Consider Reforms (Oct. 30, 2024), https://www.wgbh.org/news/politics/2024-10-30/state-lawmakers-weigh-independence-structure-of-cannabis-control-commission-as-they-consider-reforms (describing CCC’s five-member structure with appointments divided among Governor, Treasurer, and Attorney General, with two jointly appointed members).
2. GBH News, State Lawmakers Consider ‘Nuclear Option’ of Receivership for Cannabis Control Commission (July 9, 2024), https://www.wgbh.org/news/politics/2024-07-09/state-lawmakers-consider-nuclear-option-of-receivership-for-cannabis-control-commission.
3. Blank Rome LLP, CCC in Turmoil? Massachusetts Legislature Urged to Place Cannabis Control Commission in Receivership (National Law Review, 2024), https://natlawreview.com/article/ccc-turmoil-massachusetts-legislature-urged-place-cannabis-control-commission (describing OIG’s June 18, 2024 letter to Legislature identifying enabling statute’s lack of clarity in establishing leadership hierarchy).
4. WBUR, Mass. Inspector General Wants Beacon Hill to Overhaul the Cannabis Commission (Nov. 12, 2025), https://www.wbur.org/news/2025/11/12/mass-inspector-general-pot-commission-overhaul-healey.
5. GBH News, What to Know About the Cannabis Control Commission’s Leadership Drama (Aug. 15, 2024), https://www.wgbh.org/news/politics/2024-08-15/what-to-know-about-the-cannabis-control-commissions-leadership-drama.
6. WWLP-22News, State Cannabis Regulators Brace for Commission Shakeup (Jan. 17, 2026), https://www.wwlp.com/news/massachusetts/as-overhaul-looms-cannabis-regulators-say-theyre-focused-on-the-work/.
7. GBH News, State Lawmakers Consider ‘Nuclear Option’, supra note 2.
8. WBUR, supra note 4.
9. Massachusetts Legislature, H.4206, An Act Modernizing the Commonwealth’s Cannabis Laws (engrossed June 4, 2025), https://malegislature.gov/Bills/194/H4206.pdf (passed House 153-0); Massachusetts House Press Release, House Passes Bill to Reform Cannabis Laws (June 4, 2025), https://malegislature.gov/PressRoom/Detail?pressReleaseId=204.
10. Massachusetts Senate, Senate Acts to Reform Cannabis Industry Oversight, Licensure (press release, Nov. 19, 2025), https://malegislature.gov/PressRoom/Detail?pressReleaseId=296 (S.2722 passed Senate 30-7 on November 19, 2025).
11. National Law Review (Blank Rome), High Stakes and Material Changes in the Bay State: Senate Bill No. 2722 vs. House Bill No. 4160 (2025), https://natlawreview.com/article/high-stakes-and-material-changes-bay-state-senate-bill-no-2722-vs-house-bill-no.
12. Id. (“Under S. 2722, the chair of the CCC cannot participate in or supervise investigations or other fact gathering that might later come before the CCC, and the executive director has independent authority over enforcement and operations.”).
13. Massachusetts Senate Ways and Means Committee, Senate Acts to Reorganize the Cannabis Control Commission(press release, Nov. 13, 2025), https://malegislature.gov/PressRoom/Detail?pressReleaseId=283; WAMC, Hashing Out and Merging Two Bills: Mass. Conference Committee Members Weigh Cannabis Reforms (Jan. 27, 2026), https://www.wamc.org/news/2026-01-28/hashing-out-and-merging-two-bills-mass-conference-committee-members-weigh-cannabis-reforms (noting conference committee held opening meeting January 14, 2026).

13a. Massachusetts Cannabis Control Commission, Massachusetts Social Consumption Establishment Regulations Are Now in Effect (Jan. 2, 2026), https://masscannabiscontrol.com/2026/01/massachusetts-social-consumption-establishment-regulations-are-now-in-effect/ (noting final regulations approved December 11, 2025, effective January 2, 2026).

13b. Marijuana Policy Project, Massachusetts (updated 2026), https://www.mpp.org/states/massachusetts/ (confirming Secretary of State certified 78,301 signatures in December 2025 for November 2026 repeal ballot initiative).

1. Washington State Liquor and Cannabis Board, Board Information, https://lcb.wa.gov/board/board-information.
2. Cannabis Observer, WA Legislature (February 2, 2026) Update (Feb. 2, 2026), https://cannabis.observer/observations/110858-wa-legislature-february-2-2026-update/.
3. Cannabis Observer, WA Legislature (February 4, 2026) Update (Feb. 4, 2026), https://cannabis.observer/observations/111158-wa-legislature-february-4-2026-update/.
4. Washington State Liquor and Cannabis Board, Board Information, supra note 14.
5. Harris Beach Murtha, NY Supreme Court Strikes Down OCM’s One-License-Per-Majority-Owner Policy (June 10, 2025), https://www.harrisbeachmurtha.com/insights/ny-supreme-court-strikes-down-ocms-one-license-per-majority-owner-policy/.
6. Id.
7. See New York State Cannabis Law, N.Y. Canbs. Law § 13 (McKinney 2021).
8. N.Y. State Cannabis Control Board, Resolution No. 2025-57 (2025); Resolution No. 2025-37 (May 2025).
9. N.Y. Canbs. Law § 10(23) (McKinney 2021).
10. N.Y. State Cannabis Control Board, Resolution No. 2025-57, supra note 21.
11. CannabisRegulations.ai, Texas Power Struggle 2025: Abbott’s EO vs. Patrick’s Push, https://www.cannabisregulations.ai/cannabis-and-hemp-regulations-compliance-ai-blog/texas-2025-power-struggle-executive-order-hemp-thc-authority; Office of the Texas Governor, Governor Abbott Issues Executive Order to Protect Children from Hemp Products (Sept. 10, 2025), https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-to-protect-children-from-hemp-products.
12. CannabisRegulations.ai, supra note 24.
13. Id.

26a. Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, H.R. 5371, § 781, Pub. L. No. 119-37 (enacted Nov. 12, 2025) (effective Nov. 12, 2026); DLA Piper, New Federal Restrictions on Hemp and Hemp-Derived Products (Nov. 2025), https://www.dlapiper.com/en-us/insights/publications/2025/11/new-federal-restrictions-on-hemp-and-hemp-derived-products; Congressional Research Service, Change to Federal Definition of Hemp and Implications for Federal Enforcement, IN12620 (2025), https://www.congress.gov/crs-product/IN12620.

1. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928); Cornell Law School Legal Information Institute, Nondelegation Doctrine, https://www.law.cornell.edu/wex/nondelegation_doctrine.
2. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Venable LLP, Enduring Delegations, https://www.venable.com/insights/publications/2025/07/enduring-delegations-supreme-court-rejects.
3. FCC v. Consumers’ Research, 606 U.S. ___ (2025); iCONnectBlog, Nondelegation Nonrevolution (Oct. 15, 2025), https://www.iconnectblog.com/nondelegation-nonrevolutionhow-the-u-s-supreme-court-chose-statutory-interpretation-over-constitutional-upheaval-to-recalibrate-the-balance-of-powers/; Venable LLP, supra note 28.
4. Venable LLP, supra note 28.
5. Lexology, Navigating the New Legal Landscape: The Impact of Loper Bright on Federal Marijuana Rescheduling(July 9, 2024), https://www.lexology.com/library/detail.aspx?g=8ef34bef-0447-44bc-a429-6b2221c869b9.
6. WeedPress, No. 6—The Major Questions Doctrine and Cannabis Reform (Feb. 14, 2026), https://weedpress.org/2026/02/14/the-major-questions-doctrine-and-cannabis-reform-delegation-scale-and-judicial-review/.
7. Withrow v. Larkin, 421 U.S. 35, 47 (1975).
8. Washington State Liquor and Cannabis Board, Board Information, supra note 14.
9. WBUR, supra note 4; GBH News, State Lawmakers Weigh Independence, supra note 1.
10. National Law Review, supra note 11.
11. See Rosenberg & Estis, P.C., Cannabis Law Amendments (May 2024), https://www.rosenbergestis.com/blog/2024/05/cannabis-law-amendments/; N.Y. State Cannabis Control Board, Resolution No. 2024-72 (May 2024).
12. California State Auditor, Report 2024-048, https://www.auditor.ca.gov/reports/responses-2024-048-all/.
13. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); Davis Polk, The Supreme Court Rebalances the Administrative State (July 12, 2024), https://www.davispolk.com/insights/client-update/supreme-court-rebalances-administrative-state.
14. WeedPress, No. 7—Chevron’s Collapse and Cannabis Regulation (Feb. 2026), https://weedpress.org/2026/02/17/chevrons-collapse-and-cannabis-regulation-judicial-review-after-loper-bright/.
15. Lexology, supra note 31.
16. Id.
17. Id.
18. ArentFox Schiff, Oops, We Did It Again? Executive Action Revives Federal Marijuana Rescheduling Efforts (Dec. 29, 2025), https://www.afslaw.com/perspectives/alerts/oops-we-did-it-again-executive-action-revives-federal-marijuana-rescheduling.
19. West Virginia v. EPA, 597 U.S. 697, 716–19 (2022); Biden v. Nebraska, 600 U.S. 477, 503–05 (2023); WeedPress, No. 6, supra note 32.
20. WeedPress, No. 6, supra note 32.
21. CannabisRegulations.ai, Post-Chevron Reality for Cannabis and Hemp, https://www.cannabisregulations.ai/cannabis-and-hemp-regulations-compliance-ai-blog/loper-bright-corner-post-cannabis-hemp-implications-6bdaa; Congressional Research Service, Legal Consequences of Rescheduling Marijuana, LSB11105 (2025), https://www.congress.gov/crs-product/LSB11105.
22. WeedPress, No. 6, supra note 32.
23. Harris Beach Murtha, Cannabis Rescheduling: Why “Expedite” Is Political, Not Legal (Dec. 23, 2025), https://www.harrisbeachmurtha.com/insights/cannabis-rescheduling-expedite-is-a-political-word-not-a-legal-one/; Congressional Research Service, supra note 47.
24. Harris Beach Murtha, NY Supreme Court Strikes Down OCM’s One-License-Per-Majority-Owner Policy, supra note 18; CannabisRegulations.ai, After Loper Bright, https://www.cannabisregulations.ai/cannabis-and-hemp-regulations-compliance-ai-blog/loper-bright-chevron-cannabis-hemp-implications-2025.
25. Congressional Research Service, Legal Consequences of Rescheduling Marijuana, supra note 47.
26. Dickinson Wright, Marijuana Rescheduling Pending Despite New Executive Order (Dec. 2025), https://www.dickinson-wright.com/news-alerts/client-alert-cannabis-law-marijuana-rescheduling.
27. Vicente LLP, Cannabis Rescheduling Explained (Dec. 23, 2025), https://vicentellp.com/insights/cannabis-rescheduling-explained/.
28. Harris Beach Murtha, Cannabis Rescheduling: Why “Expedite” Is Political, Not Legal, supra note 49.

54a. Marijuana Moment, DEA Says Marijuana Rescheduling Appeal Process ‘Remains Pending’ Despite Trump’s Executive Order (Jan. 5, 2026), https://www.marijuanamoment.net/dea-says-marijuana-rescheduling-appeal-process-remains-pending-despite-trumps-executive-order/ (fourth joint status report confirming interlocutory appeal remains pending with no briefing schedule set as of January 6, 2026).

54b. Saul Ewing LLP, President Trump Issues Executive Order Directing DOJ to Expedite Rescheduling of Marijuana(Dec. 18, 2025), https://www.saul.com/insights/alert/president-trump-issues-executive-order-directing-doj-expedite-rescheduling-marijuana (noting Smart Approaches to Marijuana’s retention of former Attorney General Barr for anticipated post-final-rule litigation).

1. GBH News, State Lawmakers Weigh Independence, supra note 1; Massachusetts Senate, Senate Acts to Reorganize the Cannabis Control Commission, supra note 13.
2. CannabisRegulations.ai, After Loper Bright, supra note 50; WeedPress, No. 6, supra note 32.
3. Harris Beach Murtha, NY Supreme Court Strikes Down OCM’s One-License-Per-Majority-Owner Policy, supra note 18.
4. Congressional Research Service, Legal Consequences of Rescheduling Marijuana, supra note 47; ArentFox Schiff, supra note 44.

58a. Congressional Research Service, Changes to the Statutory Definition of Hemp and Issues for Congress, IF13136 (2025), https://www.congress.gov/crs-product/IF13136; Perkins Coie, Shutdown Legislation Brings New Hemp Rules(2025), https://perkinscoie.com/insights/update/shutdown-legislation-brings-new-hemp-rules (noting FDA required to publish cannabinoid classification lists within 90 days of enactment, by February 10, 2026).