Petitioners in one of several fights to decriminalize marijuana on a federal level have filed their opening brief with the Ninth Circuit. Tuesday’s filing argued that a final decision made by the Drug Enforcement Administration (DEA) denying a 2020 petition to de-list marijuana as a Schedule I Controlled Substances Act (CSA) drug was arbitrary and capricious, and that another provision of the law created an impermissible “double-delegation” in violation of the Constitution. The petitioners ask the appellate court to grant their petition for review and hold the delisting petition denial unlawful.
Petitioner Sisley and Scottsdale Research Institute are licensed to research marijuana, but the drug’s Schedule I classification has supposedly “hampered” its research. The other petitioners are three “veterans with injuries stemming from marijuana’s continued Schedule I placement.”
The brief opened with a history of the CSA. It explained that the law’s drug classification schedules were “supposed to carry out its promise: providing a flexible federal drug-control framework capable of adapting to changing times and thus eliminating the confusing patchwork of federal laws that preceded it.” Yet, the petitioners claimed, the CSA has failed to deliver on that promise fifty years hence. The brief further noted that the “growing schism between state and federal law has brought back the patchwork of incoherent law the (CSA) was supposed to fix.”
The petitioners’ first legal argument hinged on the irreconcilable nature of the DEA’s decision to deny the petition to delist marijuana in light of its statutory charge. According to the brief, under the DEA’s interpretation of 21 U.S.C. § 812(b)(1)(B), evidence gathered nearly a decade ago shows that, “per its five-part test, marijuana today has no ‘currently accepted medical use in treatment in the United States.’” The petitioners argue that in view of “marijuana’s widespread acceptance by the States,” the DEA’s finding is “untenable.”
The petitioners next argued that 21 U.S.C. § 811(d)(1), “which forms the basis for DEA’s independent determination that marijuana must be placed in Schedules I or II, unconstitutionally delegates legislative power twice: first to a non-governmental entity and then to the Attorney General.” Their separation of powers argument contended that the non-governmental entity, the World Health Organization (WHO) is permitted to set a “floor” as to marijuana’s minimum drug classification, and allegedly, the country’s attorney general, has no authority to override the WHO’s “floor” determination, but “has unfettered discretion to schedule above that point.” The petitioners claim that “(e)ven if these two handoffs could stand independently, together they plainly violate established Separation of Powers norms.”
The filing comes after amici curiae continue to support petitioners asking the Supreme Court to overturn a Second Circuit ruling finding in favor of the DEA. Advocates of decriminalization are tapping legislative channels, too. Recently, the CEO of Playboy Enterprises expressed his support for a Senate bill introduced by Sen. Kamala Harris (D-Calif.) to decriminalize and deschedule marijuana.
The petitioners in the Ninth Circuit action are represented by Yetter Coleman LLP.