Merrick Garland

Merrick Garland Helped Uphold the DEA's Refusal to Reclassify Marijuana

But the case, which hinged on the DEA's broad statutory discretion, does not say much about the SCOTUS nominee's drug policy views.


White House

Merrick Garland, the Supreme Court nominee whom President Obama announced yesterday, sided with the Drug Enforcement Administration (DEA) a few years ago in a case involving the reclassification of marijuana, a fact that has led to some grumbling among drug policy reformers. But the decision that Garland joined says more about the DEA's broad discretion under the Controlled Substances Act (CSA) than it does about his eagerness to defend pot prohibition.

In 2002 the Coalition to Reschedule Cannabis asked the DEA to move marijuana from Schedule I, the CSA's most restrictive category, to Schedule III, IV, or V. As is its wont, the DEA took its time in responding, finally rejecting the petition in 2011. The petitioners, led by the medical marijuana group Americans for Safe Access (ASA), challenged that decision in federal court, arguing that it violated the Administrative Procedure Act because it was "arbitrary and capricious." A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit disagreed in a 2013 ruling that Merrick joined.

The CSA allows the attorney general to reclassify drugs if he determines that they do not meet the statutory criteria for their current category, an authority that the attorney general has delegated to the DEA. Schedule I is supposedly reserved for drugs with a "high potential for abuse," "no currently accepted medical use," and "a lack of accepted safety," even for use under medical supervision. But the CSA does not define those terms, leaving the DEA wide leeway to decide what they mean.

The ASA case hinged on the meaning of "accepted medical use," which the DEA has defined to require the sort of evidence that the Food and Drug Administration demands before approving a new medicine, including large, double-blind clinical studies. That kind of research is very expensive, and marijuana's Schedule I status, coupled with the federal government's monopoly on producing marijuana for medical studies, makes it harder to do. (The Multidisciplinary Association for Psychedelic Studies is nevertheless trying.) The D.C. Circuit, which in an earlier case had upheld the DEA's definition of "accepted medical use," alluded to the Schedule I double bind in its decision but did not consider that argument, concluding that the issue was not properly raised.

The question for the court was not whether there is evidence of marijuana's medical utility or whether the DEA could have adopted a broader definition of "accepted medical use." The question was whether the DEA's application of its own regulations was "arbitrary and capricious," which is a highly deferential standard. "We will not disturb the decision of an agency that has 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action, including a rational connection between the facts found and the choice made,'" the D.C. Circuit said, quoting itself. Furthermore, "the agency's interpretation of its own regulations 'must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.'"

In short, the combination of the broad discretion granted by the CSA and the heavy burden imposed by the Administrative Procedure Act doomed the ASA's challenge, which suffered the same fate as every other attempt to force administrative reclassification of marijuana. I therefore would not read too much into Merrick's position in this case, although it is notable that the man who nominated him likes to pretend this whole body of law does not exist. 

NEXT: The Last Honest Man in Congress

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  1. He’s a gun grabber, there is nothing else to talk about, and that should be the only team red response period

    1. I haven’t read about him yet. I agree with you..Any one that wants to limit the 2ed is not fit to serve. I wonder his about his thoughts on citizens united.It seems most gun grabbers are for limiting free speech also.

  2. Did this guy slight Obama at a meeting? Not give him enough respect? Get overheard telling an Obama joke?Because he seems like the perfect fuy for the Senate to ignore until January of 2016 (Or at least November if the election goes to Hillary).

  3. The Judge could have stuck down the CSA law due to the lack of a Drug Prohibition Amendment to the Constitution. I have to wonder how all these supposed “Constitutionalists” on the right manage to miss that.

    1. What he said.

    2. The issue wasn’t raised. Both parties to the case were following the statute, so it wouldn’t’ve made sense for the judge to get into that. But that’s been litigated elsewhere & determined to be within Congress’s power to regulate commerce among the several states, & to legislate at necessary & proper to that end. The lack of a Drug Prohibition Amendment is important, though, in that it can be repealed by legisl’n rather than requiring a Constitutional amendment as the 21st was required to repeal the 18th.

  4. “We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action, including a rational connection between the facts found and the choice made,'” the D.C. Circuit said, quoting itself. Furthermore, “the agency’s interpretation of its own regulations ‘must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.'”

    Reason can brush this aside. It’s not atypical for a judge, but reality is that it is blind deference to bureaucrats and the government’s power to regulate anything and everything. The agency is given all benefit of the doubt in its interpretations of laws.

    1. Not only is it not atypical for a judge, it’s the SCOTUS standard under Auer. There’s been a lot of speculation the Court may be looking to go back on that atrocity and even some steps in limiting the reach of it, but one of the champions of repudiating Auer is now dead and gone.

  5. “We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action conclusion in its best interest, including a rational an irrational connection between the facts found and the choice made,'”

    1. Translation:Fuck you ,that’s why.

  6. And here’s that fucker Cuomo at fucking CNN asking the White House Chief of Staff the burning question surrounding the SCOTUS nomination – is Trump justified in suggesting there might be riots at the GOP convention if he doesn’t get the nomination if he has the most delegates but not a majority?

  7. Merrick Garland follows the communist constitution, and like Obama and Biden, upholds the racist war on drugs.

  8. So, a toad nominates a toady – this is news?

  9. Huh. Well shit, Obama’s pick for the supreme court is an absolutely shitty pick for libertarians, who’d have thunk it….

  10. I feel sick after reading that.

  11. More than anything Garland is a quintessential company man. He is the sort of judge well suited to the Foreign Intelligence Surveillance Court. Deferential to govt. power, secrecy

  12. Republican voters will vote out every Republican Senator that allows Obama to fill Antonin Scalia’s pivotal seat.

  13. Anyway, DEA’s position in that action IIRC was practically literally, “It’s for the children.” Their chief claim was that cannabis had high potential for abuse because it was attractive to minors, more so than, say, heroin, and that the ratio of minors using it recreationally to those using it medically would be overwhelming. On the medical use & safety issues, they say that while a FDA advisory panel’s opinion may not exactly be required, it’d have to be the conclusion of a body about as authoritative in the gov’t’s eyes as a FDA advisory panel.

  14. How in gods name can he be even be consider an honest broke to bad and corrupt laws.

  15. Gotta love how something that a majority of states have specifically voted and enacted laws allowing medical use of which generally requires a recommendation from a licensed doctor can be scheduled as “no medical use” and that rule is not judged as “arbitrary and capricious.”

  16. From the article:

    “We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,”

    Wow. Anyone that knows the most basic facts about marijuana knows there is no satisfactory explanation for it ever appearing on the list of scheduled drugs in the first place, or continuing to fraudulently remain on that list.

    The incredible conflict of interest the DEA has in perpetuating this insane war on millions of good Americans screams for correction. – In fact, the whole creation of the DEA was a monstrously insane idea by paranoid President Nixon to oppress minorities and the counter-culture. The DEA should be disbanded immediately.

    Future historians will rightly call this shameful era the American Inquisition.

  17. Barrack Obama never met a drug warrior he didn’t love.

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