DEA Denies State Exemption

|

On Novem­ber 10, 2020, just a week after the elec­tions, the Drug Enforce­ment Admin­is­tra­tion (DEA) denied our peti­tion for a new fed­er­al reg­u­la­tion exempt­ing state med­ical cannabis pro­grams to be added as 21 C.F.R. §1307.32.  DEA explained that deny­ing the exemp­tion was nec­es­sary because it would cre­ate an exemp­tion:

Your peti­tion is denied because the CSA con­trols mar­i­jua­na under sched­ule I, and your request­ed exemp­tion would result under the cir­cum­stances in the lapse of reg­u­la­to­ry con­trols and admin­is­tra­tive, civ­il, and crim­i­nal sanc­tions applic­a­ble to sub­stances placed on the var­i­ous CSA sched­ules.

Of course it would.  That’s the point.  Why would we ask for an exemp­tion that does not exempt any­thing?

DEA has already rec­og­nized a broad exemp­tion from sched­ule I for reli­gious use of pey­ote, 21 C.F.R. §1307.31, so of course DEA can rec­og­nize the same thing for a state.  States cre­at­ed the fed­er­al gov­ern­ment.  DEA owes its very exis­tence to the states.  DEA would have no author­i­ty to exempt a church from fed­er­al sched­ule I if the states hadn’t giv­en the DEA that author­i­ty in the first place.  DEA is bit­ing the hand that feeds it.

47 states have enact­ed excep­tions to their state drug laws for med­ical cannabis, and in the 2020 gen­er­al elec­tions 4 more states enact­ed excep­tions for non-med­ical use bring­ing that total to 15 states.  It is impor­tant to note that none of these states has repealed their exist­ing drug laws.  These new laws stand side by side with exist­ing drug laws, cre­at­ing excep­tions to exist­ing drug laws with­out cre­at­ing pos­i­tive con­flict between two.

The lack of any pos­i­tive con­flict between an exemp­tion and exist­ing drug law is impor­tant, because fed­er­al drug law uses that same lan­guage in its anti-pre­emp­tion clause:

No pro­vi­sion of this sub­chap­ter shall be con­strued as indi­cat­ing an intent on the part of the Con­gress to occu­py the field in which that pro­vi­sion oper­ates, includ­ing crim­i­nal penal­ties, to the exclu­sion of any State law on the same sub­ject mat­ter which would oth­er­wise be with­in the author­i­ty of the State, unless there is a pos­i­tive con­flict between that pro­vi­sion of this sub­chap­ter and that State law so that the two can­not con­sis­tent­ly stand togeth­er.

21 U.S.C. §903

On Novem­ber 3, 2020, Ari­zona, Mon­tana, New Jer­sey, and South Dako­ta autho­rized the non-med­ical use cannabis.

Ari­zona: Ari­zona Propo­si­tion 207 received 1,956,440 votes (60.03%) in favor, and 1,302,458 votes (39.97%) opposed.
Mon­tana: Mon­tana I‑190 received 341,037 votes (56.90%) in favor, and 258,337 votes (43.10%) opposed.
New Jer­sey: New Jer­sey Pub­lic Ques­tion 1 received 2,737,682 votes (67.08%) in favor, and 1,343,610 votes (32.92%) opposed.
South Dako­ta: South Dako­ta Con­sti­tu­tion­al Amend­ment A received 225,260 votes (54.18%) in favor, and 190,477 votes (45.82%) opposed.

DEA obsti­nate­ly argues that none of this mat­ters and that no exemp­tion is required to main­tain con­sti­tu­tion­al bal­ance, cit­ing Raich v. Unit­ed States, 545 U.S. 1 (2005), for the propo­si­tion that the fed­er­al drug laws are a con­sti­tu­tion­al exer­cise of fed­er­al leg­isla­tive author­i­ty.  And, yet, the exemp­tion from fed­er­al sched­ule I for pey­ote has nev­er been ques­tioned by the DEA as incon­sis­tent with fed­er­al drug leg­is­la­tion.

Per­haps the new Biden Admin­is­tra­tion will instruct the DEA to rec­on­cile it’s incon­sis­tent appli­ca­tion of the fed­er­al drug laws to the states.  Pres­i­dent-Elect Joe Biden says he will respect state cannabis laws:

Biden’s mar­i­jua­na pol­i­cy states:

Decrim­i­nal­ize the use of cannabis and auto­mat­i­cal­ly expunge all pri­or cannabis use con­vic­tions.  Biden believes no one should be in jail because of cannabis use.  As pres­i­dent, he will decrim­i­nal­ize cannabis use and auto­mat­i­cal­ly expunge pri­or con­vic­tions.  And, he will sup­port the legal­iza­tion of cannabis for med­ical pur­pos­es, leave deci­sions regard­ing legal­iza­tion for recre­ation­al use up to the states, and resched­ule cannabis as a sched­ule II drug so researchers can study its pos­i­tive and neg­a­tive impacts.

We filed our peti­tion filed with the DEA in Jan­u­ary of 2019, but imme­di­ate­ly after­ward I began talk­ing with state offi­cials about it.  State offi­cials were recep­tive.  Just like me, state offi­cials did not think they were doing any­thing wrong by autho­riz­ing the use of cannabis.  It was not their intent to autho­rize vio­la­tion of fed­er­al drug laws.

On Feb­ru­ary 1, 2020, I pre­sent­ed the issue to the Iowa Med­ical Cannabid­i­ol Board.

On March 6, 2019, I asked leg­is­la­tors add an amend­ment stat­ing our state pro­gram is exemp­tion from fed­er­al drug laws, but instead a dif­fer­ent amend­ment was added to Sen­ate File 501.  The amend­ment, Sec­tion 20, said our state cannabis pro­gram is not fed­er­al­ly reg­u­lat­ed.  DEA does not agree and thinks Iowa lacks fed­er­al author­i­ty.  So, it’s not as sim­ple as just stat­ing the obvi­ous if DEA doesn’t rec­og­nize the obvi­ous.  The amend­ment to SF 501 was not as strong as I had hoped for. 

On August 2, 2019, I got the Iowa Med­ical Cannabid­i­ol Board to rec­om­mend the Iowa Depart­ment of Pub­lic Health (IDPH) obtain acknowl­edge­ment from DEA that our med­ical cannabis pro­gram is exempt from fed­er­al drug laws.  And, on Jan­u­ary 1, 2020, the Iowa Med­ical Cannabid­i­ol Board rec­om­mend­ed the leg­is­la­ture con­sid­er an exemp­tion from fed­er­al drug laws.  On Jan­u­ary 7, 2020, IDPH declined to move for­ward with the fed­er­al exemp­tion “at this time.”

On June 3, 2020, the leg­is­la­ture respond­ed by includ­ing lan­guage in House File 2589 direct­ing IDPH to obtain fed­er­al fund­ing guar­an­tees for Iowans who use med­ical cannabis.  Sec­tion 31 states:

PROTECTION OF FEDERAL FUNDING.  The depart­ment of pub­lic health shall request guar­an­tees from the agen­cies of the fed­er­al gov­ern­ment pro­vid­ing fund­ing to edu­ca­tion­al and long-term care facil­i­ties that facil­i­ties with poli­cies allow­ing patients to pos­sess med­ical cannabid­i­ol on the grounds of the facil­i­ties con­sis­tent with chap­ter 124E or allow­ing facil­i­ty staff to admin­is­ter med­ical cannabid­i­ol to a patient shall not lose eli­gi­bil­i­ty for any fed­er­al fund­ing due to such poli­cies.

Final­ly, on Sep­tem­ber 4, 2020, IDPH agreed the only way to obtain fed­er­al fund­ing guar­an­tees is to obtain an excep­tion from the fed­er­al drug laws.  IDPH stat­ed:

  • In their 2019 Annu­al Report, the Board rec­om­mend­ed that IDPH seek pro­tec­tions for schools and facil­i­ties par­tic­i­pat­ing in our pro­gram and act­ing in com­pli­ance with Chap­ter 124E.
  • The Gen­er­al Assem­bly pre­scribed in HF2589 that IDPH “seek guar­an­tees” that Fed­er­al fund­ing to insti­tu­tions and facil­i­ties act­ing in com­pli­ance with Chap­ter 124E not have their fund­ing with­held due to par­tic­i­pa­tion in Iowa’s pro­gram.
  • The Depart­ment has deter­mined that it will move for­ward with seek­ing an excep­tion for cannabis as a sched­ule I sub­stance in Iowa from the DEA, in attempt to min­i­mize con­flict between State and Fed­er­al Law.
  • The Depart­ment will seek this excep­tion using Title 21 Code of Fed­er­al Reg­u­la­tions 1307.03.

IDPH was not deterred by the Novem­ber 10, 2020, DEA let­ter deny­ing our peti­tion, but it has cer­tain­ly giv­en IDPH some­thing to con­sid­er dur­ing the tran­si­tion in the fed­er­al exec­u­tive branch admin­is­tra­tions.

Beyond the ridicu­lous asser­tion that an exemp­tion can’t be rec­og­nized because it would cre­ate an excep­tion to the fed­er­al drug laws, DEA also relied on con­gres­sion­al intent and inter­na­tion­al drug sched­ul­ing:

For these rea­sons, your pro­posed rule would be con­trary to the pur­pos­es of the CSA and to oblig­a­tions aris­ing from the Sin­gle Con­ven­tion.  Your peti­tion is there­fore denied.

The tim­ing of DEA’s let­ter is inter­est­ing, com­ing just one week after the gen­er­al elec­tions and only a few weeks before the Inter­na­tion­al Nar­cotics Con­trol Board vote to reclas­si­fy cannabis.  The Unit­ed States sup­port­ed remov­ing cannabis from the most restric­tive of the inter­na­tion­al sched­ules.  One has to won­der if the DEA had to act fast while the sta­tus quo was still intact.

On Decem­ber 2, the Inter­na­tion­al Nar­cotics Con­trol Board removed cannabis from the most restric­tive clas­si­fi­ca­tion of the 1961 Sin­gle Con­ven­tion on Nar­cot­ic Drugs.

Con­gres­sion­al intent is also chang­ing rapid­ly.  On Decem­ber 4, the U.S. House of Rep­re­sen­ta­tives passed the Mar­i­jua­na Oppor­tu­ni­ty Rein­vest­ment and Expunge­ment Act of 2019 by a vote of 228 to 164

PARTYYEASNAYSNOT VOTING
Demo­c­ra­t­ic22264
Repub­li­can515834
Inde­pen­dent100
Total22816438

Specif­i­cal­ly, the MORE Act removes mar­i­jua­na from the list of sched­uled sub­stances under the Con­trolled Sub­stances Act and elim­i­nates crim­i­nal penal­ties for an indi­vid­ual who man­u­fac­tures, dis­trib­utes, or pos­sess­es mar­i­jua­na.  The Con­gres­sion­al Record con­tains the final ver­sion of the bill:

Ms. JACKSON LEE.  Mr. Speak­er, pur­suant to House Res­o­lu­tion 1244, I call up the bill (H.R. 3884) to decrim­i­nal­ize and desched­ule cannabis, to pro­vide for rein­vest­ment in cer­tain per­sons adverse­ly impact­ed by the War on Drugs, to pro­vide for expunge­ment of cer­tain cannabis offens­es, and for oth­er pur­pos­es, and ask for its imme­di­ate con­sid­er­a­tion.

And, of course, the fed­er­al bud­get has includ­ed an excep­tion for state autho­rized use of cannabis since 2014.

The inter­na­tion­al treaties also have excep­tions in them for domes­tic laws and con­sti­tu­tion­al lim­i­ta­tions of a par­ty to the treaty.

What­ev­er rea­sons Con­gress had for plac­ing cannabis in sched­ule 1 in 1970, those rea­sons have cer­tain­ly dimin­ished over time.

The exemp­tion for pey­ote has been in exis­tence since 1970, and the inter­na­tion­al treaties have had explic­it excep­tions in them since 1970 for con­sti­tu­tion­al­ly enact­ed domes­tic laws.

If state autho­rized use of cannabis is uncon­sti­tu­tion­al, DEA needs to explic­it­ly say so instead of cow­ard­ly claim­ing it had no oblig­a­tion to rec­og­nize them.  DEA can­not sim­ply stand idly by if states are enact­ing uncon­sti­tu­tion­al laws and then attempt to intim­i­date and harass the cit­i­zens who attempt to engage in the activ­i­ty autho­rized by those same laws.  DEA could chal­lenge these state laws in fed­er­al court before inno­cent peo­ple are entrapped by them.

On Decem­ber 9, 2020, we filed a new peti­tion with DEA, point­ing out, among oth­er things, the fed­er­al bud­get has been mak­ing excep­tions for state autho­rized use of cannabis since 2014, and the inter­na­tion­al treaties have now been amend­ed to reduce inter­na­tion­al restric­tions on cannabis.

A total of 47 states have now autho­rized med­ical use of cannabis and DEA thinks it can deny them pro­tec­tion under the U.S. Con­sti­tu­tion with­out chal­leng­ing the con­sti­tu­tion­al­i­ty of those state laws.  We don’t think DEA has been giv­en that author­i­ty under the fed­er­al drug laws.