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DOJ Says Medical Marijuana Rulemaking Should Not Be Before Ninth Circuit

A cananbis leaf in an indoor farm.

Close up of marijuana growing for a medical marijuana supplier. There is someone who is looking at the leaves to make sure it is a healthy crop.

On Monday, the Department of Justice argued before the Ninth Circuit that the Controlled Substances Act’s (CSA) procedure for the federal legalization of medical marijuana passes constitutional muster and is the only pathway available for individuals seeking federal approval for the growth of marijuana for medicinal research purposes.

The CSA prohibits the use, possession, or growth of marijuana for any purpose, including research. One may acquire an exception to this blanket prohibition by petitioning the Drug Enforcement Agency (DEA). If a petition is denied, the denied petitioner may seek review in any federal court of appeals. In the present legal action, a group of potential medical marijuana researchers never petitioned the DEA for review but sought to appeal to the Ninth Circuit on behalf of another.

In the initial pleadings, the plaintiffs, including Scottsdale Research Institute, argued that exhaustion of administrative remedies need not occur when the issue of legalization is a question of pure law. The logic behind such an argument was that the purpose of the DEA’s administrative steps is to only ensure an appropriate factual record for the court to use on appeal.

The defendants summarily dismissed such an argument, proffering that while the CSA’s administrative scheme is to produce thorough documentation of the facts, it is also designed for another important purpose – to ensure that the scientific expertise of members of the DEA is used to ensure a “detailed analysis of scientific studies to determine marijuana’s use under medical supervision, its safety in that use, and [determine] the standards for whether that safety is generally accepted” prior to sanctioning any private use of medical marijuana.

The defendants concluded by arguing that there is also no exception to the requirements laid out in a statutorily mandated administrative scheme when the “question of pure law” is whether or not an administrative scheme is constitutional. In Elgin v. Department of Treasury, the defendants averred, the Supreme Court “declined to create an exception for…constitutional challenges to [administrative schemes within] statutes….” and therefore, the petition before the court should be dismissed until the plaintiffs receive an unsatisfactory result from a petition before the DEA.

The petitioners are represented by Yetter Coleman.

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