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."

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

    Ummm, yeeeahhh… ok. Let’s go down this road. Let’s fucking go down this road and see who blinks first.

      1. Well, for starters, me and the 9th circuit.

        On a serious note, the 9th circuit and the Democratic Party.

        The 9th circuit and anyone who supports or cheers on the expansive role of the executive agency.

        The 9th circuit and NPR.

        The 9th circuit and…

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    1. The separation of powers business was violated when Congress adopted value-laden criteria, and in some cases criteria that are value-laden at best, and impossible to pin down at worst. I’m looking at you, “abuse”. And substance controls are just the tip of the iceberg.

      1. And substance controls are just the tip of the iceberg.

        Just the tip… juuuust the tip.

        Mein Gott, suddenly the 9th circuit is interested in looking at the separation of powers in regards to an executive agency’s ability to regulate?

        1. Getting the crap beat out of them the election after a solid LP earned 4 million votes does tend to foster re-examination of policies. Laws that send goons with guns to shoot, beat and rob voters AND wreck the fractional reserve banking system via asset-forfeiture looting are candidates for repeal–if only to steal the thunder from spoiler vote clout the LP used to have before no borders planks and the vermin catamite candidate.

    2. Does it matter the the feds have their eyes tightly closed?

    3. The DEA is wrong that the international treaty requires cannabis to be rescheduled no lower that Schedule 2. WHO recently revised its scheduling of cannabis. It was withdrawn from the highest category of dangerous drug and authorized to be scheduled for medical use in Schedules 3, 4 or below. The U.S. could under the treaty even authorize cannabis as an over-the-counter medicine. But since when have treaties been an impediment to the US Government?

  2. Great, now do the ATFE.

    Nullification all around.

  3. Biden enjoys your tears, it’s your fault because you believed him last year.

    1. Biden was elected thanks to cowardly ku-klux mystical bigots who infiltrated the GOP in 1928 and have controlled it ever since. As long as National Socialism counts on coercing women voters, even the pathetically communistic dregs of the former Democratic party are bound to prevail in elections.

  4. 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.”

    Ahhhh, the commerce clause. Is there anything it can’t do?

    1. Only the things that are deemed better left to the Necessary and Proper Clause.

      1. Congress can make laws that are necessary and proper to regulate commerce and promote the general welfare.

        That’s basically it. No limitations. Congress does what they want and once in a while the Supremes throw us a bone.

        1. So why not add the Atlas Shrugged Amendment to the Libertarian Platform? “And Congress shall make no laws restricting the freedom of production and trade.” And while we’re at it, why not bring back the 1972 Population plank–the one the Supreme Court copied into Roe v. Wade? That way we could again have women voters instead of sanctioning Republican race suicide eugenics policies.

          1. The 28th amendment should be, “Government shall not initiate force.”

            1. Government isn’t Government without force. It’s an evil necessity for ensuring Liberty and Justice from those who wish to take it by force. (counter-measure).

              The sad state of this union is when Government’s turn their back on Liberty and Justice and decide to work for ‘those who wish’ instead.

              1. Put another way:
                Defensive Gov Good versus Aggressive/”progressive” Gov Bad.

        2. That’s not what it says —
          To make all Laws which shall be necessary and proper for carrying into Execution the !!!-foregoing Powers-!!!, and all other Powers !!!-vested by this Constitution-!!! in the Government of the United States, or in any Department or Officer thereof.

          Any 3rd grader could comprehend that the Necessary and Proper ONLY concerns …. wait for it “Powers vested by this Constitution”..

          It takes a complete ‘LIE’ to pretend it thwarts the enumerated powers.

          1. Listen, if they can’t even get the 1st Amendment right, with it’s extremely clear language “Congress shall make no law…”, then there’s no hope that any text can’t be interpreted however the powers that be want it to be interpreted.

            1. There-in lies the very evil of the Democrats entire platform (i.e. [WE] mobs rule).

  5. >>the Obama administration promised

    dude all the O administrations break all the promises

  6. Canada ignored international anti-drug treaties when it legalized cannabis nationwide. Nobody cared, life goes on.

    1. Canada is a nuclear power, and not controlled by Landover Baptist hillbillies and Comstock law soft machines.

    2. Ever heard of a filibuster? Good stuff. Gets you high as fuck. So much power

  7. The League of Nations Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic (sic) Drugs of July 13, 1931 was Herbert Hoover’s progressive Dry Hope. The 1937 Historical and Technical Study bragged of “A Planned Economy on a World Scale.” Meanwhile back in the real world those controls and U.S. laws making light beer a felony quadrupled heroin prices and financed Germany’s rearmament during the Hitler Administration. Germany was already the world’s largest heroin producer in 1914. The DEA is helping to form cartels.

  8. Good News; 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.”

    There is now arguably more Supreme Court Justices that have a semi-clue what the USA is as defined by the U.S. Constitution.

    Seeing ‘officials’ actually acknowledge a “Peoples” law over them is a huge step in this Nazi ailed nation.

  9. it’s rich that the same government that is pushing an unnecessary experimental vaccine on the public states there “no currently accepted medical use” for weed.

  10. The real problem here is that during the Jim Crow era, some local and state officials (that were racists) falsely interpreted the letter & spirit of the 10th Amendment while simultaneously omitting the 9th Amendment in their flawed legal logic.

    This abuse of power by some local and state officials essentially omitted the 9th and 10th Amendments from constitutional debate ever since. Anyone citing the 10th Amendment was viewed as a likely racist. These amendments are at the heart of marijuana legalization.

    Every official (local, state, federal) is oath-sworn to protect the constitutional rights of all persons (citizens & non-citizens) within their legal jurisdictions. If one branch or level of government refuses to honor their Oath of Office (Title 5 US Code 3331) to protect constitutional rights then it perfectly legal for another branch or level to “check & balance” those disloyal officials.

    During the Jim Crow era, some local and state officials – in violation of their oath – chose not to protect African-Americans and non-white Protestants. These racists constitutional officers wrongly cited the 10th Amendment (states rights). Ignoring the 9th Amendment’s legal requirements, they essentially claimed they could violate the rights of any non-white Protestant and they wrongly claimed that the federal government had no jurisdiction. Without a constitutional-amendment process, the 10th Amendment was essentially nullified.

    Fast forward to the 21st Century, if not violating anyone’s constitutional rights in the process (upholding the 9th Amendment), marijuana legalization on non-federal property is the sole jurisdiction of the states, not the federal government’s jurisdiction.

    Following the “Citizens United” ruling, on the federal level, it should already be legal today regulated like alcohol and tobacco. This ruling should grant marijuana businesses the same 14th Amendment rights as alcohol and tobacco businesses. This ruling stated that “corporate-persons” have the same constitutional rights as “human-persons”.

    For example: a Colorado Marijuana company could file a constitutional lawsuit, on 14th Amendment grounds, citing “Citizens United”, that they are entitled to equal treatment as a “Bourbon Corporate Person” in another state.

  11. Oregon has legal pot and shrooms. All other drugs are decriminalized in small amounts.

    Instead they are using some of the tax revenue from marijuana sales and the savings from legal costs to increase availability of treatment for drug users.

    Every now and then government does something sensible. Why can’t the other states do this?

    1. How many trips to rehab are you willing to fund, Echospinner? Isn’t that a question wrt OR decriminalizing all drugs? The jury is out.

      Personally, I think drug abuse is more a public health issue than a law enforcement issue. We should try treating it that way. The law enforcement way hasn’t worked.

  12. Lest we forget, the Court has taken up the medicinal marijuana once already in Gonzales v. Raich,, 545 U.S. 1 (2005), and basically stated the Commerce Clause prevails over the states’ 10th Amendment claims. It would seem therefore that until the Congress moves on this, medicinal (and recreational) marijuana laws passed by the states are trumped by federal law. Of course, the Court could reverse itself, but this was a case that saw a split in amongst the conservative Justices; Chief Justice Rehnquist along with Justices O’Connor and Thomas dissented, while Justice Scalia joined with the majority. With the Court makeup today, who knows how the Court would go. Justice Thomas certainly would likely not change his opinion, so the question would be wether the other Justices would join him, or would they hold the same opinion as the late Justice Scalia.

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