47 F.4th 114
2d Cir.2022Background
- Alexander and Charles Green operated an interstate marijuana distribution conspiracy; indicted for conspiring to possess with intent to distribute ≥100 kg of marijuana.
- The Greens moved to dismiss the narcotics conspiracy count, arguing marijuana’s classification on Schedule I of the Controlled Substances Act (CSA) violates Fifth Amendment due process and equal protection because it lacks a rational basis—principally that marijuana has accepted medical uses contrary to the CSA’s Schedule I criteria.
- The district court applied rational-basis review, rejected tethering constitutional review to the CSA’s statutory listing criteria, found plausible public-health and safety bases for Schedule I placement, and denied dismissal.
- The district court and Second Circuit held the district court had jurisdiction to hear the constitutional defense and that criminal defendants need not exhaust administrative rescheduling remedies before raising such a constitutional challenge.
- On appeal the Second Circuit affirmed: rational-basis review asks whether any conceivable legitimate governmental interest supports the classification (not whether the drug meets the CSA’s listing elements), and the Schedule I classification of marijuana survives that deferential test.
Issues
| Issue | Plaintiff's Argument (Green) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Jurisdiction / proper forum | Challenge is constitutional and may be heard in district court; seek to strike Schedule I as unconstitutional | CSA administrative scheme is the proper route; scheduling challenges belong in agency/court of appeals review | District court has jurisdiction to adjudicate a constitutional defense; hearing in district court is permissible |
| Exhaustion of administrative remedies | Not required for criminal defendants asserting constitutional invalidity of scheduling | Defendants should exhaust the CSA’s administrative petition process first | Criminal defendants need not exhaust; Kiffer exception applies due to burdens on criminal defendants |
| Proper scope of rational-basis review | Review should be tethered to CSA’s statutory criteria (e.g., no accepted medical use); marijuana fails those criteria so classification is irrational | Rational-basis review asks whether any conceivable legitimate basis could support Schedule I placement, not whether statutory criteria are satisfied | Court must consider any conceivable legitimate governmental interest; defendants must negate every conceivable basis; Greens’ tethered approach rejected |
| Merits: Does Schedule I placement violate due process/equal protection? | Marijuana has accepted medical uses; so its Schedule I status is irrational and unconstitutional | DEA/Congress could reasonably have acted based on public-health and safety concerns (psychoactive effects, adolescent impact, prenatal exposure, widespread use, social harms) | Schedule I classification survives rational-basis review; due process and equal protection claims fail |
Key Cases Cited
- Gonzales v. Raich, 545 U.S. 1 (describing CSA scheduling scheme and history of marijuana’s placement)
- F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (rational-basis review permits upholding legislation on any conceivable rational basis)
- Heller v. Doe, 509 U.S. 312 (standard for rational-basis review in due process/equal protection context)
- United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973) (criminal-defendant exception to administrative-exhaustion for scheduling challenges)
- Washington v. Barr, 925 F.3d 109 (2d Cir. 2019) (distinguishes exhaustion rules in civil suits from criminal-defense context)
- Ross v. Blake, 578 U.S. 632 (2016) (limits and exceptions to judge-made exhaustion doctrines)
- McKart v. United States, 395 U.S. 185 (exhaustion generally disfavored where it imposes severe burdens on criminal defendants)
- Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (equal-protection challenge to statutory classifications of things)
- Beatie v. City of New York, 123 F.3d 707 (2d Cir. 1997) (burden on challenger to negative every conceivable basis supporting classification)