Federal Judge Declines to Reclassify Marijuana

She nevertheless lends support to the view that marijuana does not belong in Schedule I.


Jacob Sullum

Today Kimberly Mueller, the federal judge who surprised a lot of people by granting an accused California marijuana grower's request to re-examine the plant's status under the Controlled Substances Act (CSA), said she was not prepared to rule that the drug should be taken out of Schedule I, the most restrictive legal category. According to the Associated Press, "Mueller said during a 15-minute court hearing that she was initially prepared to grant the defense motion but then decided from the facts of this particular case that 'this is not the court and this is not the time.'" She ultimately concluded that marijuana's classification, although arguably inconsistent with the criteria specified by the CSA, satisfies the highly deferential "rational basis" test.

Mueller nevertheless lent support to the view that marijuana does not belong in Schedule I, which is supposedly reserved for drugs with a high abuse potential that have no accepted medical use and cannot be used safely, even under medical supervision. Marijuana's Schedule I status makes it more tightly controlled than morphine, cocaine, or methamphetamine. "It has been 45 years since Congress passed the Controlled Substances Act," Mueller said, and "the landscape has changed." 

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), says Mueller deserves credit for hearing expert testimony on the issue. "We applaud Judge Mueller for having the courage to hear this issue and provide it the careful consideration it deserves," he says. "While we are disappointed with this ruling, it changes little. We always felt this had to ultimately be decided by the 9th Circuit, and we have an unprecedented record for the court to consider."

Armentano notes that Congress does not have to wait for the courts. "It is our hope that lawmakers move expeditiously to change public policy," he says. "Bipartisan legislation is before the House and Senate to recognize cannabis's therapeutic utility and to reschedule it accordingly. We encourage members of Congress to move forward expeditiously to enact this measure." Armentano is referred to the CARERS Act, which among other things would move marijuana to Schedule II with the aim of triggering a reconsideration of its status.

According to NORML, Mueller's written decision "is not yet available but is expected to be posted publicly by week's end." 

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  1. “In strict medical terms marijuana is far safer than many foods we commonly consume. For example, eating 10 raw potatoes can result in a toxic response. By comparison, it is physically impossible to eat enough marijuana to induce death. Marijuana in its natural form is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within the supervised routine of medical care.”

    DEA Administrative Law Judge Francis Young, 1988

    1. But, today’s marijuana is a hillion skillion times more powerful than in 1988!!

      1. +1 Ross Riglioti

  2. satisfies the highly deferential “rational basis” test.

    Courts applying rational basis review seek to determine whether a law is “rationally related” to a “legitimate” government interest, whether real or hypothetical.

    What possible legitimate government interest could there be for drug prohibition?

    1. da childrenz

    2. Policing for profit.

    3. Control?

    4. campaign donations from alcohol producers?

      1. EtOH doesn’t compete directly with cannabis. The legion of Rx products designed and prescribed for mental health is the competition.

  3. You want to see how poisonous judicial deference is?

    Consider that this judge just deferred to the executive/legislative determination that marijuana in fact has a “high abuse potential that have no accepted medical use and cannot be used safely, even under medical supervision.”

    If judicial deference means that judges accept obviously and comprehensively false determinations by the executive and legislative branches, well, give me judicial “activism”.

    “It has been 45 years since Congress passed the Controlled Substances Act,” Mueller said, and “the landscape has changed.”

    The political landscape has changed. Whether marijuana has, in fact, a “high abuse potential that have no accepted medical use and cannot be used safely, even under medical supervision” has not. It never has met this test. Even when it had no accepted medical use, it could be used safely, and so failed one prong of a two-prong test.

    So why is she talking about the [political] landscape changing, in a judicial decision? I have no clue, other than our judiciary is thoroughly infected with the idea that they should craft their decisions to meet political pressures and demands, rather than apply the law to the facts.

    1. Footnote 4, bitches.

    2. Apparently the government’s rationale to pass the ‘rational basis’ test can be a complete lie as long as the lie supports rational basis.

      1. To quote David Byrne/Talking Heads,

        same as it ever was…same as it ever was…same as it EVER was…and then the twister comes…here comes the twister

    3. I’m going to disagree. There is no solid constitutional basis for the judge to order a rescheduling and she kicked it back into the political arena where it properly belongs. I would have agreed with her and you as to the result, but the ends don’t justify the means.

      1. Clearly you are not well-versed in creative description of the ends and means currently in issue. Perhaps a more thorough memorization of Das Kapital could help you on that score.

    4. What it means that since we don’t know what Congress members meant then by “potential”, “abuse”, “accepted”, “medical”, or “safely”, it can’t be determined now judicially, only legislatively.

      1. if that’s the case then the judge should have voided the law for vagueness.

  4. Baby steps ™.

    The next judge who agrees to hear the issue will, hopefully, be even less deferential.

  5. This useless shyster was appointed by President Choom. I would have expected this kind of weaseling from a Shrub appointee.


  6. ‘this is not the court and this is not the time.’

    When the hell has that ever stopped a judge from ruling how he wanted? Oh, it only works when the judge is expanding government power, not restricting it.

  7. Let’s just cut through the bullshit here. The Controlled Substances Act is unconstitutional and should be struck down in it’s entirety.

    The problem is not so much that cannabis is on schedule 1, but that schedules should not exist in the first place.

    1. That is a more correct question to place before the judiciary – please locate the enumerated power that the federal govt is exercising.

      Yeah, I know the FYTW clause.

    2. ^This.

    3. How do you imagine pharmaceutical companies will enjoy protection for their anti-anxiety, anti-depressant, anti-everything psychoactives if CSA is not kept in place and continually reinforced?

  8. Another judge without balls?metaphorically speaking.

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