Marijuana and the Poverty of 'Rational Basis' Review

Why a federal judge's decision against reclassifying cannabis was inevitable


U.S. District Court

Kimberly Mueller, a federal judge in Sacramento, surprised many court observers when she granted an accused marijuana grower's request to review the plant's status under federal law. Brian Pickard, who was eventually joined by 15 co-defendants, argued that prosecuting him for growing cannabis violated his Fifth Amendment right to equal protection of the laws (derived from the guarantee of due process) because marijuana does not belong in Schedule I, the most restrictive category of the Controlled Substances Act (CSA). It was an argument that any marijuana defendant could use, which was one reason Mueller's decision to take it seriously raised eyebrows. Another reason: Despite her apparent open-mindedness, the standard of review she applied made it inevitable that Pickard would lose

That much is clear from Mueller's April 17 decision, which explains how amazingly deferential the so-called rational-basis test is. That is the test courts use in equal protection cases that involve neither fundamental rights nor suspect categories such as race, and Mueller signaled early on that it was the standard she was inclined to use in this case. In practice, that decision meant the expert testimony she heard last fall about whether marijuana meets the criteria for Schedule I ultimately made no difference, except to the extent that it showed there are two sides to this argument, something everyone already knew.

Schedule I supposedly is reserved for drugs with a high potential for abuse that have no accepted medical applications and cannot be used safely, even under a doctor's supervision. Each of those points is highly questionable with respect to marijuana, as is the result that cannabis is more restricted than Schedule II drugs such as morphine, cocaine, and methamphetamine, not to mention drugs in lower schedules that arguably have a higher potential for abuse (contrary to CSA guidelines). But as Mueller notes in her ruling, the government nevertheless can find experts who are willing to argue that marijuana meets all three Schedule I criteria. And under "rational basis" review, that is enough to uphold marijuana's classification.

"Under the deferential standard of rational basis review," Mueller writes, "as long as there is some conceivable reason for the challenged classification of marijuana, the CSA should be upheld." Quoting a 1993 Supreme Court decision, she notes that "the asserted rationale may rest on 'rational speculation unsupported by evidence or empirical data.'" She adds that "the law may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster." Furthermore, says Mueller, quoting another 1993 Supreme Court decision, "the government 'has no obligation to produce evidence to sustain the rationality of a statutory classification.'"

Indeed, Mueller says, the government need not even show that its classification satisfies statutory criteria. She approvingly quotes a federal judge's 1980 response to a lawsuit challenging marijuana's Schedule I status:

Even assuming, arguendo, that marijuana does not fall within a literal reading of Schedule I, the classification still is rational. Placing marijuana in Schedule I furthered the regulatory purposes of Congress. The statutory criteria of section 812(b)(1) are guides in determining the schedule to which a drug belongs, but they are not dispositive. Indeed, the classifications at times cannot be followed consistently, and some conflict exists as to the main factor in classifying a drug—potential for abuse or possible medical use.

Given this understanding of "rational basis," Mueller's conclusion is hardly surprising (emphasis added):

The question before the court is a narrow one: whether Congress acted rationally in classifying marijuana as a Schedule I substance in light of the record created before this court. To ask that question in this case, under rational basis review, is to answer it. This court cannot say that Congress could not reasonably have decided that marijuana belongs and continues to belong on Schedule I of the CSA….The record here does not demonstrate there is only one supportable point of view about marijuana's safe[ty], medical value or abuse potential.

It's not just that Pickard lost based on the evidence presented in this particular case. There is no way he could have won, as long as the government was willing to contradict the experts who testified on his behalf. The government's witnesses did not need good, persuasive, or sensible reasons for their views. They just needed reasons. 

[Thanks to Paul Armentano for the text of Mueller's order.]

NEXT: Feds Convict Elderly Bar Owner Who Allowed Prostitution Upstairs as 'Sex Trafficking Ring Leader'

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  2. To ask that question in this case, under rational basis review, is to answer it…

    This is all gobbledegook.

    1. To state that answer, in this article, under any reasonable basis, is to question it.

  3. the government nevertheless can find experts who are willing to argue that marijuana meets all three Schedule I criteria. And under “rational basis” review, that is enough to uphold marijuana’s classification.

    An expert is someone from out of town, wearing a suit and carrying a briefcase.

  4. So, now we have a legal defense and definition of BFYTW!

    1. Pretty much.

    2. I was going to say, “So, this is literally ‘FYTW’.” Man.

  5. This just in! Justice System Rigs Trial!

    Please send pictures of your shocked face, and I shall assemble them into an artful collage to hang in Warty’s basement.

    1. I can’t figure out if I would be more pissed that she shot it down OR that she pretended to give me hope only to shoot it down.

      Same result, one costs me a lot more money.

    2. Is this going to be a college project, like the rape-lying bitch did? Cause that would be pretty cool.

  6. Did the judge just make work for her clerk? To ask that question is to answer it.

  7. I’m really dumbfounded that “”the asserted rationale may rest on ‘rational speculation unsupported by evidence or empirical data.'” She adds that “the law may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster.””

    I shouldn’t be, but I am.

    1. “the law may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster”

      “License my roving hands, and let them go
      Before, behind, between, above, below.”

    2. See my post below. We do not want judges to go into the business of deciding what laws should stand or fail based on what they think is right or good.

      1. I’m trying to figure out what would be the point of challenging the law in court. Tell me I’m wrong, but you seem to be saying that the only recourse people should have as to bad, possibly unconstitutional laws is through the legislature. What, then, is the point of the courts, other than to give their stamp of approval?

        1. There is a law that says I can’t get unemployment benefits after so many weeks. I am being discriminated against because I have been unemployed for a long time. Everyone else who is unemployed gets their check but I don’t. Take away the rational relationship test and the government will have to provide a really compelling reason why I am not getting a check. And no way would Prog judges find “because we can’t afford it” or “because we want people to go back to work” compelling reasons. They are rational reasons for sure. But if you kill the rational relationship test, rational is no longer good enough.

        2. The immediate problem is that some Supreme Court decision invented rational basis and intermediate scrutiny out of whole cloth as a means of bypassing the Constitution.

          The bigger picture is letting government define its own limits, with no recourse for the people to reject or even challenge a law or court decision as unconstitutional.

          1. No. The Supreme Court invented intermediate and strict scrutiny out of thin air. Equal protection does not mean everyone must be treated exactly the same. The government can treat people differently. The whole question is on what basis may it do that.

      2. They weren’t even challenging the law. Its crazy. I happen to think marijuana should be legal and is not particularly harmful, but I am willing to admit there are plenty of studies shoqing it to be harmful. That an agency would be making a decision on incomplete and out-dated information is unfortunate, but having a judiciary that can at whim throw out individual decisions seems like a worse option. How would you ever operate in such a climate?

  8. I understand the appeal of scrapping the rational basis test. It would be nice if courts were more willing to strike down laws that took away our rights. The problem is that it would rarely work out that way. Sure, in the case of classifying marijuana as a schedule 1 drug, scrapping the standard would be a very good result indeed. For every good result there would e a hundred bad results.

    For example, where does the government get off cutting off people’s unemployment after a set number of weeks? They are still unemployed aren’t they? No way would that or pretty much any other restriction on welfare survive a heightened level of scrutiny under equal protection. For that matter, where does the government get off setting income requirements for any welfare at all. Who says if you make this or that income you are “poor”. Take away the rational relationship test and judges would be free to substitute their own definitions of what constitutes “poor” in place of what the law says. Scrapping the rational relationship test would be an invitation to progressive judges to create the European welfare state they have always dreamed of.

    1. Then there are things like entrance and academic standards for state run universities. Take away the rational relationship tests and federal judges would then be free to change the standards to whatever they want in the name of equal protection. Who says that things like grades and test scores should matter. We don’t owe government’s any deference. The courts could decide what factors they think matter. And who could be thrown out and who couldn’t.

      There is no limit to the power scrapping this standard would give judges. Reason seems unable to understand that not every law deprives us of our right and not every decision striking down a law makes us more free.

      1. Can’t it be a higher standard than the insanely deferential rational basis test? I would think test scores and grades would easily survive something like intermediate scrutiny. And are unemployment benefits really the same kind of “right” as the right not to be molested by the government for smoking weed?

        1. I would think test scores and grades would easily survive something like intermediate scrutiny.

          Not if the judge didn’t want them to. Intermediate scrutiny is what is applied to sex discrimination. So grades and test scores would have to be justified as a criteria to the same level of certainty having separate men’s and women’s locker rooms is justified. Good luck with that.

        2. And are unemployment benefits really the same kind of “right” as the right not to be molested by the government for smoking weed?

          From the perspective of equal protection, yes it is. The government can’t just say “since we don’t have to give this to anyone, we are free to give it out on whatever basis we choose’. Sure, the government could choose not to give such benefits at all. If it does, it has to do so consistent with equal protection. So, it couldn’t for example give unemployment benefits to everyone but Jews. Right now it gives them to everyone who is unemployed for less than a set number of weeks. The people who are unemployed longer lose their benefits and are being discriminated against just as much as if the government cut them off for being black or Jewish. The only difference is that the government can’t cut someone’s benefits off on the basis of race because the level of scrutiny is so much higher. They can cut them off on the basis of time or income because the scrutiny is only that the distinction be rational. Make that level of scrutiny higher and Progressive judges will happily make sure the government takes care of everyone.

    2. Despite our disagreement on legislative deference, I agree completely. There is no reason for the Court to review each and every application of a law to second-guess a duly empowered administrative agency. Either it is witin the power of the Attorney General to place substances on the Schedule of Restriction or it is not. Given that there is a present but disputed body of science supporting the Scheduling of marijuana at that level, it isn’t the place of the judiciary to quibble on the decision. The action was within the scope of the law which is Constitutional.

      1. Yeah. The problem is the law and the solution is to have it repealed not turn control of our government over to a bunch of judges.

      2. Yeah, I agree. This is not John Roberts giving utter deference by creating a penaltax out of whole cloth, it’s a regulatory agency doing what it was empowered to do. It’s up to Congress to shut them down.

        Of course, the proper argument is that they have no authority under the Constitution to regulate it at all.

      3. But that wasn’t at issue in this case, because it was Congress that put marijuana under controls, and no administrative agency has ever altered its scheduling.

        1. The point is even more firm. If Congress has the power to limit access to substances, then the court shouldn’t quibble. Although it is my understanding that the administrative agency has the power to change even the substances originally scheduled by Congress.

          1. That’s true. Under the statute that preceded the CSA by a few yrs., the list of things subject to controls could be altered administratively, but those drugs that were listed statutorily could not be so removed. Now they can. But that wasn’t at issue in this case.

    3. John, if they scrapped rational basis and used logical basis instead, then that would mean that ALL of what you said would be scrapped. You can’t logically justify some arbitrary discriminatory practice or encoding of law then it’s scrapped.

      1. No it wouldn’t. There is nothing “irrational” about unemployment benefits. What gets to be problematic is deciding who should and should not get such benefits. Judges would just get rid of the limitations or redefine them in ways they liked.

        Think about what you are saying here, someone has their unemployment benefits cut off or can’t get welfare anymore because they refused to look for a job and they sue to get their benefits back and you are telling me the judge is going to strike down unemployment benefits or welfare as a whole rather than ordering the state to go back to paying the plaintiff. No that is not what would happen. Not even in bizzaro world would that occur.

    4. “For example, where does the government get off cutting off people’s unemployment after a set number of weeks? ”

      Where does th government get off creating an unemployment program to begin with?

      It’s not pursuant to any enumerated power delegated to the federal governmnet in the text of the Constitution as is required by the 10th Amendment.

      1. That is a nice argument Gilbet, but it has nothing to do with Equal Protection.

        1. It has to do with enforcing the Constitution. The federal government itself is in the unemployment benefit business.

          1. Saying “the federal government can’t do this” is not getting rid of the rational relationship test. How you read the enumerated powers is not the same thing as the rational relationship test.

            1. If the 10th Amendment were properly enforced, most things would never make past that to get to any rational basis test to begin with.

      2. Unemployment payment is a state benefit.

        1. Which is a property right and cannot be taken away without due process or a rational reason for doing so.

          1. But that has nothing to do w what Gilbert Martin was asking for, i.e. a power of the federal gov’t.

          2. No it is not.

            There is no such thing as affirmative rights.

    5. I think the problem is that the rational-basis test is being used to uphold ridiculously-unjust criminal laws, which in combination with the sentencing guidelines are used to throw people in jail for decades.

      For mundane administrative matters — grants, unemployment, etc. — that do not actually impact a person’s right to freely walk the streets, I can see where rational-basis can and should still have a use. Not getting a grant =/= being thrown in jail, IMO.

      1. No, the problem is our legislature is passing lousy laws. We can’t give judges the power to “overturn only lousy and unjust laws”. It doesn’t work like that. Give them the power to overturn the laws we hate and we necessarily give them an equal power to overturn every law. And that won’t work out very well.

      2. People knew in advance their action w.r.t. marijuana was illegal, so criminal liability does not pose the problem you state.

  9. By spelling out how ridiculous rational-basis review actually is — it has never been distilled into the ridiculous “whatever Congress says is okay” statement before, which is the opposite of “rationality” — I think the judge actually did us a favor.

    1. The only favor I can think of is that it may have encouraged people to draft a very long amendment to the US Constitution putting various things out of the reach of Congress. Because suppose people see the implications of rational basis review; what else can they do about it?

      1. What good would that do? Congress would still have to pass it first.

        1. Or the states in convention.

  10. “That is the test courts use in equal protection cases that involve neither fundamental rights nor suspect categories such as race”

    And that concept highlights the fact that the so called rational basis test was entirely made up out of thin air by the court itself with no basis in the Constitution whatsoever.

    There is nothing in the Constitution that states certain rights are “fundamental” and others are not. Freedom of speech or relgion is not one iota more of a “fundamental” right than private property rights. James Madision would never have swallowed such an absurd idea.

    1. No. it was implicit in the amendment. The Amendment was never intended to mean “the state can never treat anyone differently than anyone else”. You can’t have a government at all if the state is prohibited from discriminating in some fashion. The state runs prisons don’t they? I would say locking people up for years or even the rest of their lives is treating one group of people pretty damned unequal to the the rest of society.

      So the state most certainly can treat some people differently than others. The question is on what basis can it do that. And rational basis is the obvious answer. The other basis were the ones that the court made up. They made up things like strict scrutiny later when they decided they wanted to do something about race relations.

      1. What Amendment are you referring to?

        And what do prisons have to do with it?

        You lock people up because they have commited harm to someone else in some way. That has nothing to do with the absurd notion that there is something inherently more fundamental about freedom of speech or religion than there is about private property rights.

        1. The 14th Amendment. And yes, you lock people up for good reason. That doesn’t change the fact that doing so is treating people differently. Suppose the state started locking people up based on race. They set up a system where the prison population must always match the demographics of the general population. So as a result some people convicted of crimes walked and others spent long sentences for the same crime all to assure that the prison population kept a set demographic.

          That would never pass muster under equal protection. The reason it wouldn’t is not because the state can’t treat similarly situated people differently or unequally. It wouldn’t because the state can’t do that based on their race.

          1. None of that has anything to do with what I said.

            My issue is that the court is making up out thin air a concept that certain rights are “fundamental” and others are not.

            There is nothing in the Constitution that explicitly and literally states that there is anything more “fundamental” about freedom of speech or religion rights that are enumerated in the First Amendment than are private property rights enumerated in the Fifth Amendment.

            All should be exactly equally protected from federal government encroachment to literally the exact same degree in all circumstances. And if the 14th Amendment is to incorporate the rights in the Bill of Rights to protect individuals against the power of state govermnets, the same concept applies there as well. The courts were also making stuff up out of thin air in creating a piecemeal approach in 14th Amendment incorporation of rights enumerated in the Bill of Rights. Either the 14th applies them all exactly equally or it applies none of them at all.

          2. That doesn’t change the fact that doing so is treating people differently.”

            Treating individuals differently based on what they have or haven’t done is not remotely analgous to classifying enumerated Constitutional rights for different treatment.

    2. Rational basis review doesn’t affect Constitutional rights, only powers of Congress.

      1. Not true. It affects some rights; property rights and rights to government benefits.

      2. It is not applied to “fundamental rights” whatever those are.

        1. “Fundamental rights” has been used as code language by federal courts for stuff relating to making babies, which are fundamental because if it weren’t for baby making, we wouldn’t be here, so neither would the Constitution. Check it out, I say that’s a reasonable distill’n of what the Griswold decision says.

  11. Actually it was only 1 little bit of the decision that you need to understand this, which is that Congress (not Justice Dept.) put marijuana in schedule 1, and that just because it put into the same schedule descriptions of controlled substances which may contradict the characteristics of marijuana, it’s clear that Congress intended marijuana to be a controlled substance. W.r.t. those substances placed under controls by Congress, the descriptions of their characteristics as controlled substances serves not to identify them, but just as some chit-chat Congress inserted w no bearing on the matter other than in administrative control actions.

    1. Can you write this again in English?

      1. Suppose Congress said, “Marijuana is hereby illegal because it causes dandruff.” The fact that it doesn’t cause dandruff can’t be used as a basis for invalidating Congress’s making it illegal, because it’s clear Congress was making it illegal.

        1. In other words, just because the reason they stated isn’t valid doesn’t mean they didn’t have some reason, & as long as they had some reason, even if not stated in the legisl’n, it was within Congress’s power to do so.

        2. So, the only hurdle for something to be a compelling state interest is that the state wants something to be illegal? It really is because FYTW then.

          1. The only hurdle is the enumerated powers clause, and we all know what’s been done to that.

          2. No, not a compelling state interest. They use that term only when they’re using a higher level of scrutiny than that, i.e. when they’re traversing violation of a Constitutional or fundamental right.

            In this case, if they thought, for instance, that marijuana smelled bad, that’d be sufficient reason for what Congress did. It doesn’t have to be anything important.

            1. when they’re traversing violation of a Constitutional or fundamental right

              The right to breathe whatever the fuck I want to put in my own personal atmosphere isn’t fundamental, I suppose

            2. Yes, I get it. They could put someone in prison for excessive flatulence if they wanted to. The fart rations have been decreased to 4 a day, comrade

  12. Then why are the federal courts overturning state anti-gay marriage laws even if they are overinclusive, underinclusive, illogical, and unscientific?

    1. The Supreme Court decided that discrimination based on sexual orientation is never rational.

      1. No, they haven’t yet decided that.

        1. You’re right, I meant to clarify that “animosity” is never a rational basis, which is what the Court found in Romer.

          But I am curious when the Court wouldn’t find animosity to be the rational behind such a law.

          1. That’s easy. All they have to do is agree with me. I’m against same-sex “marriage”, but not out of any animosity. I’m tried of stating the reasons over & over; maybe I should’ve put an essay on my Web site.

  13. furthered the regulatory purposes of Congress.

    I’m… Ok, so congress must regulate something… Marijuana is something, so they get to regulate it?

  14. Can’t expect a feral judge to do anything right or logical, they do exactly what their masters tell them to do. You could count the number of judges with an IQ over 75 in the entire USA on one hand with fingers left over.

    They won’t change the schedule one classification because that would end their “Treason for profit” industry of waging war on fellow citizens. The psychopaths in charge make billions from the cartels they work for. They prove it constantly by allowing the money laundering bankers to go free and giving free guns to the cartels. They are loyal employees.

  15. So, if Congress felt it was rational, then it was rational… and as long as even a single person is willing to testify that they believe it’s still rational, then the rest of us have to live with it?

    Could anything be less rational than that?

  16. Let me boil it down for you Judge.

    “Schedule I Cannabis” is a Damned lie.

    There is only one way to reconcile the CSA and reality: Cannabis SHALL be removed from CSA “Schedule I”, and placed in “CSA Subchapter I, Part A, ?802. Definitions, paragraph (6)”, appended to the list “distilled spirits, wine, malt beverages, or tobacco”, where it will STILL be the least-toxic in the category [by several orders of magnitude].

    In other words, completely EXEMPT from CSA scheduling.

    Anything short of that is unacceptable.

    And that is the bottom line.

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