Madmen Rule You, Part 3: The latest attempt to take cannabis out of Schedule I

Right now there is a very important lawsuit pending in the United States Court of Appeals for the D.C. Circuit. It seeks to lay the foundation for a challenge to the placement of cannabis in Schedule I.  That lawsuit is Americans for Safe Access, et al., v. Drug Enforcement Administration, No. 11-1265.

The Controlled Substances Act is a complete statutory scheme governing psychoactive drugs. (Forget tobacco and alcohol; they are not included.) Among other things, it provides the mechanism by which the DEA can put drugs and other substances into the Schedules, and thus impose criminal penalties for their manufacture, distribution, possession, etc. It also provides the mechanism by which a drug or other substance can be moved into another Schedule – or moved out of the Schedules entirely. Most importantly, for our purposes, the CSA provides that “any interested party” may petition the DEA to move a controlled substance around the Schedules. The provisions of the CSA that govern how a controlled substance may be moved into, out of, or around the Schedules appear in the U.S. Code at 21 U.S.C. 811.
In technical terms, a request that the DEA reschedule cannabis, i.e. move it out of Schedule I into another Schedule, is a “petition” for the DEA to commence “rulemaking on the record,” i.e. to conduct evidentiary hearings as to how a drug should be scheduled. 
In 1972, the National Organization for the Reform of Marijuana Laws (NORML) petitioned the predecessor agency to the DEA to move cannabis out of Schedule I. That proceeding lasted twenty-two years, ending in 1994 after the D.C. Circuit Court of Appeals killed it. In that proceeding, the DEA was forced to hold an evidentiary hearing, as described above, which resulted in the famous statement by the DEA administrative law judge, Francis Young, that cannabis is the safest therapeutic substance known to man and the conclusion that it should be moved out of Schedule I. It also resulted in an order by the DEA Administration rejecting this conclusion.
A second petition followed in 1995 but was rejected on procedural grounds.
In 2002 a coalition called the Coalition to Reschedule Cannabis brought another petition to reschedule cannabis. Between 1995 and 2002, of course, the state medical cannabis movement had broken out following the passage of Proposition 215 in California, the Institute of Medicine had issued a report indicating that there were therapeutic uses of cannabinoids (although it indicated that it believed that the cannabis plant material will never be considered a medicine) and encouraging more research, and it seemed appropriate to revisit the issue with the DEA. The DEA accepted the petition, obtained an opinion from the FDA that cannabis should stay in Schedule I in 2006 and sat on the petition for another five years without ruling until CRC brought an action in federal court in April 2011 to compel the DEA to act.
After nine years of waiting, the petitioners started a federal lawsuit to compel the DEA to issue a decision on the petition, and the DEA promptly issued an order in June 2011 that was published in the Federal Register on July 8, 2011, at 76 FR 40552. The decision, which I will call the “DEA Ruling,” reviewed the petition to hold hearings about whether to move cannabis out of Schedule I, concluded that there was no basis even to hold hearings, and denied the petition.

Once there was a DEA decision, the petitioners could challenge it in court, which is what is happening now in the D.C. Circuit Court of Appeals. The petitioners filed their legal brief in January of 2012. The DEA filed its legal brief in response on March 23.

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