Last summer season I wrote a few ruling by the Second Circuit regarding a lawsuit filed by 5 individuals difficult marijuana’s standing as a schedule I drug beneath the Controlled Substances Act (“CSA”). The lawsuit requested the federal courts to rule that marijuana’s standing as a schedule I drug is unconstitutional beneath the Due Process Clause of the Fifth Amendment, the Right to Travel, and the Commerce Clause.

Although the Second Circuit expressed appreciable skepticism of the drug scheduling regime, the court docket held that earlier than plaintiffs may search reduction in federal court docket, they need to first file a de-scheduling petition with the DEA. The Second Circuit gave plaintiffs six months to file such petition, noting {that a} failure to accomplish that would end in the court docket affirming the decrease court docket’s dismissal of the case. In January 2020, the plaintiffs knowledgeable the court docket they didn’t intend file a petition and the case was dismissed.

As reported in Marijuana Moment, in July the plaintiffs filed a petition for a writ of certiorai with the Supreme Court difficult the Second Circuit’s ruling (the “Petition”). The Petition asks the Court to take up three questions:

  1. Can Congress, per the Due Process Clause of the Fifth Amendment to the U.S. Constitution, criminalize medical hashish with out exception, even for sufferers who require its day by day administration to dwell?
  2. Given the three necessities for designation as a Schedule I drug beneath the CSA (21 U.S.C. §812(b)(1)), is the classification of hashish so irrational that it violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution?
  3. Can Congress, per the Due Process Clause of the Fifth Amendment to the U.S. Constitution, require individuals aggrieved by the classification of a substance beneath the CSA to submit to an administrative overview course of that can’t, as a matter of regulation, present the reduction they search?

At this level, readers could also be asking: Why didn’t the plaintiffs file a petition with the DEA?

Likely for pragmatic and strategic causes. On the pragmatic aspect, the DEA was virtually actually going to deny the petition. As we’ve beforehand defined:

A dozen occasions or so, non-public events have filed petitions with the Drug Enforcement Administration (DEA), per CSA protocol on rescheduling. The DEA has routinely denied every petition, or declined to settle for it outright. The lone exception was a petition filed by the pharmaceutical producer of Marinol, to transfer the artificial hashish drug from Schedule II to Schedule III. That one was granted.”

In addition, as the plaintiffs documented earlier than the Second Circuit, the common delay in deciding petitions to reclassify medication beneath the CSA is 9 (9!) years.

But didn’t the Second Circuit order the DEA to act promptly to keep away from this subject? Yes. In reality, the Second Circuit determined to train its discretion to preserve jurisdiction of the case and to take no matter motion if plaintiffs search administrative overview and the DEA fails to act promptly. The court docket famous that “under the unusual health‐related circumstances of this case, what has counted as appropriate speed in the past may not count as appropriate speed here.” So this meant the DEA was not going to get away with taking 9 years to resolve whether or not to de- or re-scheduled marijuana.

So what provides?

Well, the key right here is that the plaintiffs are making constitutional arguments. “Administrative agencies typically do not adjudicate constitutional challenges. See Elgin v. Dep’t of Treasury, 567 U.S. 1, 29 (2012). Here, the Petition contends that “claims seeking redress for constitutional injury cannot be resolved by the DEA.” Petition at 3. In different phrases, the plaintiffs are saying: Look, the DEA just isn’t an company tasked with, or able to, deciding whether or not marijuana’s standing as a schedule I drug is unconstitutional. The Petition argues the DEA itself has acknowledged its lack of jurisdiction to resolve such points and that the Second Circuit’s ruling immediately conflicts with a ruling by the D.C. Circuit, making a circuit break up the Supreme Court ought to resolve.

So will the Supreme Court hear the case?

It’s too early to inform as a result of the authorities has but to file its response, after which the justices will vote on whether or not or not to grant certiorari and resolve the deserves of the attraction. (The authorities’s response is due in mid-September). That stated, I imagine there’s a truthful likelihood the case will get taken up, despite the fact that it entails marijuana. That is as a result of the Supreme Court, notably its conservative members, is more and more skeptical of the doctrines involving deference to administrative companies.

One instance of that is the precept that courts ought to typically defer to companies’ interpretation of a statute that it administers (that is generally generally known as the Chevron doctrine). Chevron has been beneath assault for years, starting with opinions by Justice Scalia, whose torch has been picked up by Justice Gorsuch. Another instance is Auer deference, which is the observe of deferring to an administrative company’s affordable interpretation of an ambiguous regulation that the company promulgated. Although Auer deference lately was upheld in Kisor v. Wilkie by 5-Four vote, the opinions replicate a veering away from giving broad deference to administrative companies.

This rising mistrust of administrative companies mixed with the constitutional questions introduced in the Petition could also be sufficient to persuade 4 justices to settle for the case. We will proceed to observe this fascinating and doubtlessly game-changing litigation.

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