Less than a week before the 420 cannabis holiday, some potentially bad news came out of a federal courtroom in California. Judge Kimberly Mueller finally issued her twice–delayed ruling about the legality of the Federal government classifying cannabis as a Schedule I drug. Judge Mueller ruled it to be constitutional, preserving the Schedule 1 classification and leaving cannabis listed as one of the most deadly drugs known, with no medical value.
Cannabis clearly does not belong in Schedule I, because it has widely accepted medical benefits and a low potential for abuse compared to drugs like alcohol and tobacco. Despite those facts, Judge Mueller felt the need to rule the way she did and risk disappointing cannabis advocates, because there is more at stake than just cannabis.
California NORML deputy director, Paul Armentano, served as the defense counsel’s principal investigator for the case, US v. Schweder. “We applaud Judge Mueller for having the courage to hear this issue and provide it the careful consideration it deserves. While we are disappointed with this ruling, it changes little,” said Armentano regarding the ruling.
Jeremy Daw, author of Weed the People, was at the hearing and covered every phase of the decision in great detail. We learn from Daw’s coverage that the real reason why Judge Mueller ruled against cannabis was her choice of the rational basis test, had she chosen to apply the Strict Scrutiny test, or even Intermediate Scrutiny, cannabis would be legal now. There is a very lively debate in the medical industry and courts right now over what level of scrutiny should be applied to medical cases, as one’s access to medicine and thus their pursuit of life, liberty, and happiness is fundamental and inalienable.
In 1988, DEA Administrative Law Judge Francis Young ruled that, “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.” With Judge Mueller’s ruling we learn that, apparently the measure of rational basis does not support cannabis as a safe medicine, and I am shocked by how a 1988 court could be more progressive than one in 2015.
Mueller laid out her reasoning very clearly when she noted that a court cannot rule on legal questions that are not properly put before it, implying the defense did not properly ask their legal question. Federal Attorney Gregory Broderick was even blunter, saying that the entire hearing was a waste of time and scant government resources and that the question of rescheduling cannabis was properly left up to the President and Congress.
Cannabis legalization and the court cases it generates do not exist in a vacuum and they all create legal precedent for future cases, which can have unintended consequences. Judge Mueller was doing her best not to be a judicial activist, a practice that was once rare but has become very commonplace in America today.
This cannabis patient and legalization activist has to applaud Judge Mueller for refusing to become a judicial activist. While judicial activism is the fast way to get things done in our political system, it is not the best way and was never meant to be how laws were made; they were meant to be passed by the Legislative Branch, Congress.
The last time drug laws were repealed by a court was in 1969, in the case of Leary v. US, when Timothy Leary was arrested for cannabis possession and used the 5th Amendment to strike down the Marihuana Tax Act of 1937. This ushered in a period of a few months when America had no drug laws on the federal books, only state laws, and this lasted until the Controlled Substances Act was passed on October 27th, 1970.
Judge Mueller acted in defense of the Constitution and the Separation of Powers, trias politica, something far greater and more important than any individual issue. She also acted to avoid a situation that could create legal chaos as federal law is re-written without any new law to replace it. Cannabis legalization is great, but it means little if the price is shredding the Constitution, especially when a workable bill like CARERS is working its way through both houses of Congress, gaining more support every day. CARERS is not perfect, far from it, but it can be amended into something that is workable.
The biggest issue with CARERS is that the current wording treats THC and THC-using patients, as second-class citizens whos’ medicine, despite THC having a lower lethal dose and thus being safer than CBD, is still more heavily regulated despite having even more studies done on its safety than CBD. I am no doctor, and perhaps a doctor can propose a better standard of a drug’s safety than its LD50, but I cannot think of one. Using the LD50, CBD is about 180 times as toxic as THC; yet still totally safe compared to other legal drugs like alcohol, tobacco, methamphetamine, and thousands of others that are less regulated than cannabis.
What Judge Mueller did was an administrative passing of the ball to Congress, she also seems to be openly cheering on the CARERS bill as a way to resolve our dated cannabis policy. Even the federal government’s lawyer seemed to agree that CARERS is the way to go. While CARERS has flaws, it would at least allow for research to be done on cannabis and that could usher in better policy regarding cannabis medicine. Two things are certain after this ruling, cannabis must be rescheduled and it will not happen through the courts. It is time for Congress to act.