The 9th Circuit Considers Whether the DEA's Classification of Marijuana Violates Federalism and the Separation of Powers

The puzzle of marijuana's Schedule I status invites a reconsideration of the agency's vast discretion to decide which substances should be prohibited.


Nearly five years after the Obama administration promised to end the federal government's longstanding, anomalous monopoly on marijuana for medical research, the Drug Enforcement Administration (DEA) has tentatively approved applications by several independent suppliers. But the DEA still maintains that the plant belongs in Schedule I of the Controlled Substances Act (CSA), a category supposedly reserved for especially dangerous drugs with no accepted medical use.

At the center of both disputes is the Arizona-based Scottsdale Research Institute (SRI), one of the organizations that has received preliminary DEA approval to grow marijuana. Today SRI President Suzanne Sisley, a physician who has studied marijuana's usefulness as a treatment for post-traumatic stress disorder, is asking the U.S. Court of Appeals for the 9th Circuit to reject the DEA's rationale for keeping marijuana in Schedule I. Sisley says the agency is wrong to ignore 36 states' recognition of marijuana's medical utility. She also argues that the CSA's obeisance to international anti-drug treaties is "an unconstitutional delegation of legislative authority" that "violates core separation of powers principles."

The CSA gives the attorney general the authority to reschedule drugs in consultation with the Department of Health and Human Services, a power the attorney general has delegated to the DEA, a Justice Department agency. The National Organization for the Reform of Marijuana Laws filed the first petition asking the DEA to reclassify cannabis half a century ago. But neither that case nor subsequent challenges made much headway, because federal courts have deferred to the agency's interpretation of the CSA's scheduling criteria.

According to the DEA, marijuana has "no currently accepted medical use" because it does not satisfy a five-part test invented by the agency, which demands the sort of evidence that would be required to win approval of a new medicine by the Food and Drug Administration (FDA). In the DEA's view, the fact that most states allow patients to use marijuana for symptom relief is irrelevant.

Sisley argues that judicial acceptance of the DEA's position is not required by Chevron deference, a doctrine that says courts should not question an administrative agency's interpretation of an "ambiguous" statute as long as it is "rational" or "reasonable." In this case, Sisley says, the relevant statutory language is not ambiguous.

"Based on the statutory text, structure, history, purpose—and the original understanding of the statute—'currently accepted medical use' means 'legitimate' or 'lawful medical purpose,'" says the petition for review in Sisley v. DEA. "This is the only interpretation that captures the cooperative federalism vision of the CSA and respects state sovereignty." And in determining whether medical use of marijuana is legitimate, Sisley says, the drug's legal treatment by 36 states surely should count for something.

"Can DEA deny that marijuana has a 'currently accepted medical use in treatment in the United States' when more than two-thirds of the States have enacted legislation greenlighting marijuana's use as medicine?" Sisley's opening 9th Circuit brief asks. "The unambiguous text of [the statute], canons of construction, the CSA's history and purpose, and common sense all converge on a single, resounding answer: 'No.'"

Sisley argues that the DEA also misconstrues another criterion for placing a drug in Schedule I: "a lack of accepted safety for use of the drug or other substance under medical supervision." The DEA says marijuana lacks accepted safety because the FDA has not approved it as a medicine and it has no "accepted medical use," which conflates two different criteria and, Sisley says, "improperly import[s] a clinical efficacy requirement."

Even if marijuana were reclassified, the DEA argues, it would have to be placed in Schedule II, a highly restricted category that is supposed to include dangerous drugs that have an accepted medical use but still have "a high potential for abuse." The DEA cites a CSA provision that says the agency should place a drug in the schedule it "deems most appropriate" to meet U.S. obligations under international treaties that were in force when the CSA was enacted in 1970, including the Single Convention on Narcotic Drugs of 1961. (Concerns about the Single Convention's requirements also explain why it took so long for the DEA to act on applications from organizations that wanted to produce marijuana for research.) The Single Convention charges the World Health Organization (WHO) with recommending drugs for inclusion in particular schedules, which in turn constrains the DEA's decisions under the CSA.

The treaty-dependent provision of the CSA "unconstitutionally delegates legislative power twice: first to a nongovernmental entity [the WHO] and second to the Attorney General," Sisley's brief says. "WHO does what it wants. The Attorney General does not participate in and has no discretion to undercut WHO's decision. He cannot, for example, place fewer restrictions than international obligations demand. This is what DEA means when it says it cannot move marijuana below Schedule II: WHO-dictated treaty obligations create an impenetrable floor."

Furthermore, the brief says, the CSA "transfers a quintessential legislative power—the power to execute treaties—to the Attorney General." And in doing so, Sisley argues, it fails to provide an "intelligible principle to choose among schedules," as required by the Supreme Court's delegation precedents. "The Attorney General has no discretion to override the floor dictated by an unelected international body," Sisley's lawyers say. "But he has unfettered discretion to schedule above that point. Even if these two handoffs could stand independently, together they plainly violate established Separation of Powers norms."

At a time when pot prohibition is steadily crumbling across the country and Congress is considering bills that would entirely remove marijuana from the CSA's schedules, this argument about the plant's proper classification might seem like irrelevant quibbling. But as Sisley notes, the regulatory requirements for Schedule I drugs, along with the marijuana monopoly the DEA is finally beginning to address, make it harder for researchers like her to investigate the drug's potential.

President Joe Biden says he agrees. During his campaign, he promised to facilitate medical research by reclassifying marijuana. His press secretary recently reaffirmed that the president favors "rescheduling cannabis as a Schedule II drug so researchers can study its positive and negative impacts." Since that decision is entirely within the power of the executive branch, the Biden administration can deliver on his promise without seeking new legislation from Congress. Instead it is defending marijuana's Schedule I status in federal court.

Even if the DEA does ultimately move marijuana to Schedule II, that will not resolve the untenable conflict between state and federal law, even regarding medical use. Although Biden said he would "support the legalization of cannabis for medical purposes," that would require FDA approval, which in turn would require an applicant with the resources to meet the agency's requirements. All of that would not matter much if Congress simply repealed the federal ban on marijuana, a step that Biden has steadfastly resisted.

Beyond the immediate practical impact of Sisley's case, it raises important issues regarding federalism and the separation of powers. The CSA itself, insofar as it purports to prohibit activity that never crosses state lines, is an affront to the 10th Amendment that is based on an absurdly broad reading of the Commerce Clause. Its continued treatment of cannabis as contraband and state-licensed marijuana suppliers as felons creates all sorts of risks and headaches for a burgeoning industry that most states view as legitimate.

Worse, the CSA, as currently understood, gives the DEA nearly unlimited discretion to decide which substances should be prohibited or restricted, even when its judgment defies common sense. If the puzzle of marijuana's Schedule I status encourages federal courts to reconsider the breadth of that discretion, the implications could extend far beyond this particular plant or drug policy generally. As Justice Neil Gorsuch observed as a 10th Circuit judge, the Chevron doctrine "permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design."