Who Decides Drug Laws: Scheduling, the DEA, and the States
Key takeaways
- The Controlled Substances Act of 1970 sorts drugs into five schedules, from Schedule I, with no accepted medical use, to Schedule V.
- The DEA decides scheduling with a binding medical and scientific review by Health and Human Services, and Congress can also schedule drugs by law.
- Marijuana remains Schedule I federally, but about 24 states and D.C. allow recreational use, and state-licensed medical marijuana moved to Schedule III in April 2026.
- Overdose deaths fell from about 110,000 a year at the peak to about 70,000 in 2025.
- The 2025 response to fentanyl included terrorist designations for cartels, tariffs, a permanent ban on fentanyl analogs, and military strikes on suspected drug boats.
- States write their own drug laws and run most prosecutions, treatment, and prevention.
Drug policy involves Congress, federal agencies, the military, and the states, and swings between treating drug use as a crime and as a health problem. Federal and state laws often conflict, most visibly on marijuana.
This guide explains how drugs are classified, who enforces the laws, and the main debates, presenting the arguments on each side.
The Controlled Substances Act of 1970 places drugs in five schedules based on medical use and potential for abuse. Schedule I drugs such as heroin are banned outside approved research, while Schedule II through V drugs, from oxycodone to some cough medicines, can be prescribed with increasing ease. Everyone who makes, distributes, prescribes, or dispenses controlled drugs must register with the DEA and keep records.
The DEA, part of the Justice Department, schedules drugs, but it must first get a scientific and medical evaluation from the Health and Human Services Department, usually through the FDA, and is bound by its medical findings. The process includes public comment and sometimes hearings before an administrative law judge, and can take years. Congress can schedule drugs directly by law, as it did in 2025 by permanently placing fentanyl-related substances in Schedule I.
Illicit fentanyl drove overdose deaths to about 110,000 a year at the peak, before deaths fell to about 70,000 in 2025. In 2025 the government designated cartels as terrorist organizations, imposed tariffs citing fentanyl, designated illicit fentanyl a weapon of mass destruction, and began military strikes on boats it said carried drugs. Naloxone became available over the counter in 2023, and states are spending about 50 billion dollars from opioid settlements on treatment and prevention.
Marijuana has been Schedule I since 1970, but about 24 states and D.C. now allow recreational use and nearly 40 allow medical use, and Congress bars federal interference with state medical programs. After a review begun in 2022 and a December 2025 executive order, the DEA moved FDA-approved and state-licensed medical marijuana to Schedule III on April 22, 2026, and held a hearing in mid-2026 on rescheduling it more broadly. Recreational sales remain illegal under federal law.
Supporters of strong enforcement say traffickers and cartels are killing Americans and must be stopped at the source and the border. Advocates of a health approach say decades of arrests did not reduce drug use, filled prisons, and fell hardest on Black communities, and favor treatment, harm reduction, and legalization of marijuana. The legality of military boat strikes and the role of tariffs have drawn sharp disagreement, and Gonzales v. Raich confirmed that federal law reaches even homegrown marijuana.
Most drug arrests and prosecutions happen in state courts under state laws. Federal cases focus on trafficking, often with mandatory minimum sentences set by drug quantity, and drug offenders make up a large share of federal prisoners. The 2010 Fair Sentencing Act and the 2018 First Step Act reduced some penalties, while recent laws added new ones for fentanyl.
See the agencies in federal law enforcement agencies, state and federal conflicts in when states defy Washington, or public health in public health explained.