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.]