An old federal five-factor test violates state sovereignty
The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.
Is there any thing whereof it may be said, See, this is new? it hath been already of old time, which was before us.
Ecclesiastes 1:9-10
In 1985, I joined a coalition of marjuana reform organizations seeking to reschedule cannabis. 21 C.F.R. § 1308.43 – Initiation of proceedings for rulemaking. In 1988, an administrative law judge for the Drug Enforcement Administration (DEA) found:
Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.
Source: DEA Docket No. 86-22 (September 6, 1988), pp. 58-59
The petitioners ultimately lost, the case turning on a five-factor test formulated by the DEA to determine whether a substance has accepted medical use in treatment in the United States. 21 U.S.C. § 812(b)(1)(B). Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 938 (D.C. Cir. 1991) (“eight factor test”); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994) (“five-part test”).
While the administrative hearings were being held, the U.S. Court of Appeals for the First Circuit found:
Congress did not intend “accepted medical use in treatment in the United States” to require a finding of recognized medical use in every state or, as the Administrator contends, approval for interstate marketing of the substance.
Grinspoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987).
However, because there were no states in the United States that accepted the medical use of cannabis in 1987, 1991, or 1994, the five-factor test did not violate state sovereignty. There was no need for the DEA to include state sovereignty as a factor.
Although cannabis had been accepted for medical use prior to the federal Controlled Substances Act of 1970, its medical use had been discontinued due to a propaganda campaign in the 1930s exemplified by “Reefer Madness”.
It was not until 1996 that states began accepting the medical use of cannabis again. As of this writing (June 2020), a total of 47 states and a majority of federal territories have now accepted the medical use of cannabis in treatment in the United States.
In 2002, I joined another coalition of marjuana reform organizations seeking to reschedule cannabis. While the petition was pending, the U.S. Supreme Court reversed a decision by the Attorney General to block the implementation of Oregon’s Death With Dignity (assisted suicide) statute as being outside the scope of accepted medical treatment under 21 U.S.C. § 812(b). The court found:
The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.
Gonzales v. Oregon, 546 U.S. 243, 258 (2006).
I notified my co-petitioners that the five-factor test the DEA had been using in making scheduling determinations was no longer valid because of state laws authorizing the medical use of cannabis, but the petitioners did not want to amend their petition.
In 2010, I notified the DEA that I was separating myself from the other petitioners because they were not using state sovereignty as an argument in their petition. By that time the DEA had already received a recommendation from the Department of Health and Human Services (DHHS) on December 6, 2006, to maintain status quo and keep marijuana in federal schedule 1. 76 Fed. Reg. 40,552 (July 8, 2011).
I intervened in the appeal, but the court never considered my argument because the DEA had not considered my argument and had not made any ruling on it. Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013).
I memorialized my argument that the DEA’s five-factor test violates state sovereignty in an application for certiorari to the U.S. Supreme Court. Olsen v. DEA, No. 13-484, figuring that I would use it again in the future. The National Organization for the Reform of Marjuana Laws (NORML) added my application for certiorari to their legal brief bank in 2013.
As it turns out, Iowa’s Medical Cannabidiol Act enacted in 2017 provides an alternative to 21 C.F.R. § 1308.43 (Initiation of proceedings for rulemaking). 21 C.F.R. § 1307.03 – Exceptions to regulations provides an exemption from federal scheduling, which eliminates the need for federal rescheduling or descheduling.
In a very interesting development, a federal researcher has filed an appeal on May 12, 2020, in the U.S. Court of Appeals claiming that the federal schedule 1 classification of cannabis is making it too difficult to do research. The appeal makes the same argument I made in the U.S. Supreme Court in 2013, that the five-factor test is invalid because it violates state sovereignty. Scottsdale Research Institute v. DEA, No. 20-71433 (9th Circuit).
In my petition to initiate federal exemption proceedings filed with the Iowa Department of Public Health on June 7, 2020, I note that without an exemption federal scheduling would violate state sovereignty. I note that the DEA’s five-factor test is invalid because it would give the DEA unconstitutional authority to interfere with state law (“The DEA’s five-part test would seem to nullify these state laws without a clear delegation from Congress of that kind of constitutional authority over the states”). Petition, at pages 3-4.
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