DECISION AND ORDER
INTRODUCTION
Defendants Alexander and Charles Green (collectively “Defendants”), indicted for an alleged marijuana conspiracy, seek dismissal on constitutional grounds. (Dkt. 82). Their motion to dismiss was initially considered by the magistrate judge
Among other arguments, Defendants contend that their equal protection rights have been violated by the federal government’s classification of marijuana as a Schedule I controlled substance—the highest level of drug classification. (See id.). Defendants seek an evidentiary hearing concerning marijuana’s Schedule I classification, arguing that the classification is irrational and unconstitutional. (Id. at 21-22).
Over 40 years ago, when dealing with a similar challenge to marijuana’s Schedule I classification, the Second Circuit Court of Appeals cautioned: “Any court asked to undertake review of the multifarious political, economic and social considerations that usually underlie legislative prohibitory policy should do so with caution and restraint.” United States v. Kiffer,
That determination is for the legislative process, not the judicial process. Because Defendants have failed to establish that the classification of marijuana as a Schedule I controlled substance violates their constitutional rights, and because an evi-dentiary hearing will not impact that conclusion, this Court adopts the Report and Recommendation and Defendants’ motion to dismiss is denied.
BACKGROUND
A two-count indictment was returned on
Defendants filed objections to the Report and Recommendation on September 9, 2016 (Dkt. 174), and the Government filed its memorandum in opposition on October 5, 2016 (Dkt. 186). Oral argument was held before the undersigned on November 2, 2016, and the Court reserved decision. (Dkt. 193).
Defendants’ objections focused on their argument that it is no longer rational to maintain that marijuana has no currently accepted medical use in treatment in the United States—one of the criteria established by Congress for the classification of a drug as a Schedule I controlled substance—and, therefore, at a minimum, the Court is obliged to conduct an evidentiary hearing to consider the medical field’s current assessment of marijuana’s efficacies before summarily denying Defendants’ motion to dismiss. (See Dkt. 174 at 11). Defendants go on to argue that even if there are competing opinions as to the medical value provided by marijuana, the state of medicine has evolved to the point where marijuana is currently accepted for medical use in treatment, and therefore the criteria for Schedule I classification is no longer satisfied. (See id. at 16-20). In other words, according to Defendants’ argument, the evidence they would present at a hearing would establish that it is irrational, and therefore unconstitutional, to conclude that there is no currently accepted medical use for marijuana. (See id. at 20-21).
This Court reviews Defendant’s objections under a de novo standard. Fed. R. Crim. P. 59(b)(3); see also 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); United States v. Male Juvenile,
THE CONTROLLED SUBSTANCES ACT
Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“the Act”) in response to President Nixon’s declared “war on drugs.” Gonzales v. Raich,
A drug falling within the scope of Schedule I—the highest level of classification with the most onerous control restrictions—must have:
1. A high potential for abuse;
2. “[N]o currently accepted medical use in treatment in the United States;” and,
3. “[A] lack of accepted safety for use of the drug or other substance under medical supervision.”
21 U.S.C. § 812(b)(1). Congress classified marijuana as a Schedule I drug when it enacted the CSA based, in part, on the recommendation of the Assistant Secretary of the Department of Health, Education, and Welfare, who urged marijuana’s Schedule I classification at least until the completion of studies which were already underway at the time. Gonzales,
Congress established a process for reclassification, vesting the Attorney General with the power to reclassify a drug “on the record after opportunity for a hearing....” 21 U.S.C. § 811(a). Before initiating proceedings under § 811(a), the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services (“HHS”), whose findings with respect to scientific and medical matters are considered binding. Id. § 811(b). The Attorney General has delegated her reclassification responsibility under the CSA to the Drug Enforcement Agency (“DEA”). See 28 C.F.R. § 0.100(b).
With respect to the second criteria for Schedule I classification (whether the drug has “currently accepted medical use in treatment in the United States”), the DEA applies a five-part test: “(1) [t]he drug’s chemistry must be known and reproducible; (2) there must be adequate
Those seeking to challenge the DEA’s determination with respect to classification must pursue relief in a United States Court of Appeals. 21 U.S.C. § 877 (“[A]ny person aggrieved by a final decision of the Attorney General may obtain review of the decision in the United States Court of Appeals for the District of Columbia or for the circuit in which his principal place of business is located upon petition filed with the court and delivered to the Attorney General within thirty days after notice of the decision.”). The question of whether a drug belongs in one schedule rather than another “clearly calls for fine distinctions, but the statutory procedure at least offers the means for producing a thorough factual record upon which to base an informed judgment.” Kiffer, 477 F.2d at 357. The existence of this statutory scheme “indicates that, in dealing with this aspect of the ‘drug1 problem, Congress intended flexibility and receptivity to the latest scientific information to be the hallmarks of its approach.” Id.
Nonetheless, “[d]espite considerable efforts to reschedule marijuana, it remains a Schedule I drug.” Gonzales,
In classifying marijuana as a Schedule I drug, “the manufacture, distribution, or possession ... became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study.” Gonzales,
THIS COURT’S JURISDICTION
The Government argued in opposition to Defendants’ motion to dismiss that the Court lacked jurisdiction to entertain Defendants’ claims, reasoning that under the CSA all administrative determinations made by the Attorney General (or DEA), including scheduling, are subject to review in circuit court. (Dkt. 113 at 1-4). The Report and Recommendation rejected the Government’s argument, reasoning that the Court had jurisdiction to evaluate Defendant’s constitutional challenges. (Dkt. 157 at 4-5).
Although in agreement with the Report and Recommendation that jurisdiction exists to hear a proper constitutional challenge, the Court is not convinced that De
When Defendants’ argument is dissected, it essentially becomes an attack on the scheduling of marijuana based on the criteria set forth in the statute. Defendants contend that it is irrational to conclude that there is no currently accepted medical use for marijuana—a standard not set forth in the Constitution, but rather one derived from the language of the CSA. (See Dkt. 83 at 24). Put another way, Defendants attempt to base their claims of unconstitutionality on the language set forth in the statute at issue, not the Constitution.
Notwithstanding this Court’s doubts as to whether Defendants have truly attacked marijuana’s scheduling on constitutional grounds, a number of courts have engaged in the analysis requested by Defendants. See, e.g., United States v. Pickard,
Indeed, both the Report and Recommendation, and Defendants rely upon the Second Circuit’s decision in Kiffer, where that court rejected the government’s argument that the proper avenue to challenge the Schedule I classification of marijuana was through a petition under the administrative framework of the CSA.
The Kiffer decision remains binding on this Court, and it stands for the proposition that a defendant may challenge the scheduling of marijuana through a constitutional attack brought in district court. Moreover, cases from other jurisdictions have allowed for the type of challenge raised by Defendants with the present motion. Thus, while the Court questions the soundness of those decisions as applied to the circumstances present here, it will nonetheless consider Defendants’ arguments.
IS THIS AN EQUAL PROTECTION CLAIM?
The Equal Protection clause of the Fourteenth Amendment—made applicable to the federal government through the Fifth Amendment’s Due Process clause— provides that the government shall not “deny to any person within its jurisdiction the equal protection of the laws.” See U.S. Const. amend XIV, § 1. A threshold question in any equal protection claim is whether similarly situated individuals are treated differently. See City of Cleburne, Tex. v. Cleburne Living Ctr.,
Drugs do not have constitutional rights—people do. The Equal Protection clause prohibits treating people differently for constitutionally impermissible reasons. See id. at 439-40,
Notwithstanding the Court’s skepticism about the ability of an individual to phrase the constitutional challenge in the manner
Second, despite the Court’s articulated concerns about the ability to launch an equal protection challenge based upon the classification of a drug, there are a number of courts that have allowed for just such a challenge. See, e.g., Pickard,
WHAT IS THE CONSTITUTIONAL QUESTION?
The Report and Recommendation concluded that Defendants’ constitutional challenge should be evaluated utilizing the rational basis test, and this Court agrees with that conclusion for the reasons articulated in the Report and Recommendation. (See Dkt. 157 at 6-11).
Defendants have characterized the “central question” in this case as follows: “[D]oes the government’s position that marijuana currently has no accepted medical use in the United States—a finding required for Schedule I substances—have a rational basis?” (Dkt. 109 at 4 (emphasis original)). Based upon the election results last month, comprehensive medical marijuana laws have been adopted in 28 states and the District of Columbia. See Katy Steinmetz, These States Just Legalized Marijuana, Time (Nov. 8, 2016), available at http://time.com/4559278/marijuana-election-results-2016. According to Defendants, 77 percent of Americans believe marijuana has a legitimate medical use. (Dkt. 83 at 33; see also id. (“Patients and citizens, whose collective wisdom are the bedrock of our democracy, have resoundingly voiced their acceptance.”)).
It is difficult to conclude that marijuana is not currently being used for medical purposes—it is. There would be no rational basis to conclude otherwise. And if that were the central question in this case, Defendants’ argument would have merit— but it is not the central question. Whether there are those in the community—or even a majority of citizens or states—who view marijuana as having medical value, cannot transform a statute into an unconstitutional infringement of a defendant’s rights.
“Statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.” Ferguson v. Skrupa,
The rational basis test is a very deferential standard and precludes second-guessing Congress’s “wisdom, fairness, or logic of legislative choices.” Heller,
“In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Fed. Commc’ns Comm’n v. Beach Commc’ns,
Undei’ this standard, a classification will withstand scrutiny even if the “line drawn by Congress [is] imperfect,” Vance v. Bradley,
As summarized by the Second Circuit Court of Appeals:
a [party attacking the constitutionality of a statute under a rational basis standard] must do more than show that the legislature’s stated assumptions are irrational—he must discredit any conceivable basis which could be advanced to support the challenged provisions, regardless of whether that basis has a foundation in the record, or actually motivated the legislature. Otherwise stated, once the legislature’s action has been shown to have some plausible rationale, a court’s inquiry is at an end.
Id. at 713 (internal citations omitted) (emphasis original) (holding a city ordinance not unconstitutional where it prohibited cigar smoking in various public places because there was a plausible basis for the statute).
Defendants focus their argument on the claim that it is not rational for Congress or the DEA to continue to conclude that there is no acceptable medical use for marijuana. Admittedly, courts addressing similar claims have accepted this characterization of the argument, and those courts have evaluated an equal protection challenge in that context (albeit all resulting in determinations that there has been no constitutional violation). See, e.g., Pickard,
Nonetheless, this Court does not believe that this is the correct question. Rational basis review asks not whether it is reasonable to conclude that the specific criteria in the statute have been met, but, rather, whether there is any conceivable basis that might support the classification. Under a rational basis test, the particular facts relied upon by the legislature in passing the
As explained by the court in United States v. Wilde,
If traditional rational basis applied, this factual information [ (current scientific evidence and contemporary legislative developments) ] would be irrelevant since legislation and regulations will be upheld so long as there is any ‘conceivable’ basis justifying the challenged classification. Under the traditional rational basis test, it is not necessary to examine the actual justification and supporting facts for the challenged classification.
Wilde,
Put simply, this Court believes that the inquiry engaged in by the Pickard court, as well as some of the other decisions cited in the Report and Recommendation, is immersed too deeply in the precise criteria of the statute and expands a court’s review beyond the rational basis test. The issue is not whether it was rational for Congress or the DEA to conclude that there is no currently accepted medical use for mari
Congress’s stated purpose for the passage of the CSA was public health and safety. One need only review the DEA’s most recent denial of a petition to reschedule to recognize the continuing public health and safety issues associated with marijuana use—it “induces various psychoactive effects that can lead to behavioral impairment,” Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,767, 53,774 (Aug. 12, 2016); it can result in a “decrease in IQ and general neuropsychological performance” for those who commence using it as adolescents, id.; it may result in adverse impacts on children who were subjected to prenatal marijuana exposure, id. at 53,775; it “is the most commonly used illicit drug among Americans aged 12 years and older,” id. at 53,770; and its use can cause recurrent problems related to family, school, and work, including repeated absences at work and neglect of family obligations, id. at 53,783-84.
Even if there is a legitimate medical purpose associated with marijuana, under the rational basis standard of review, there are numerous conceivable public health and safety grounds that could justify Congress’s and the DEA’s continued regulation of marijuana as a Schedule I controlled substance. Under no reasonable view of the facts could it be concluded that it is irrational for Congress to continue to regulate marijuana in the manner which it has, and for the DEA to continue to adhere to a Schedule I classification for marijuana. No evidentiary hearing is required to reach that conclusion.
DEFENDANTS CANNOT ESTABLISH THAT IT IS IRRATIONAL TO CONCLUDE THAT THERE IS NO CURRENTLY ACCEPTED MEDICAL USE FOR MARIJUANA
Notwithstanding the discussion above as to the proper question for a constitutional challenge under a rational basis test, the Court acknowledges that courts have expressed the constitutional inquiry as examining the criteria for Schedule I classification under the CSA. Indeed, as referenced in the Report and Recommendation, the Supreme Court in Vance defined the burden on those challenging the constitutionality of a statute on equal protection grounds as being required to “convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental deeisionmaker.” Vance,
Thus, the Court has also conducted a de novo review of the issues raised by the motion to dismiss, assuming that the proper area of inquiry is whether, in light of recent developments concerning the medical use of marijuana, there continues to be a rational basis to conclude that there is no currently accepted medical use for marijuana. Under those circumstances, Defendants’ constitutional challenge still fails for the reasons set forth more thoroughly in the Report and Recommendation, Moreover, for the reasons set forth in the Report and Recommendation, an evidentiary hearing is not required to resolve this issue. This conclusion is only further buttressed by the DEA’s most recent rejection of a petition to reschedule, wherein HHS concluded—based upon an analysis conducted by the Food and Drug Adminis
Any hearing on this issue is unnecessary. Whether the medical purposes for which marijuana is being used is “accepted” continues to be debated. As determined by the Pickard court, after a full evidentiary hearing, the medical use of marijuana in treatment remains the subject to “principled disagreement of the experts.” Pickard,
CONCLUSION
As the Second Circuit indicated in Sea-fe: “The Constitutional presumption in this area of the law is that the democratic process will, in time, remedy improvident legislative choices and that judicial intervention is therefore generally unwarranted. We will intervene in the extraordinary circumstances where it can only be concluded that the legislature’s actions were irrational.” Beatie,
Therefore, for the reasons set forth above, and as set forth more fully in the Report and Recommendation, Defendants’ motion to dismiss (Dkt. 82) is denied.
SO ORDERED.
Notes
. This Court referred all pretrial matters to United States Magistrate Judge Jonathan W. Feldman pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Dkt. 9).
. Six defendants were charged in the indictment; all except for Alexander Green and Charles Green have pleaded guilty.
. In a footnote, Defendants alternatively argued that they also asserted their constitutional challenges “under a more general and inclusive Due Process analysis.” (Dkt. 83 at 10 n.13).
. As noted in the parties’ submissions, the DEA recently denied another petition to reschedule marijuana. (See Dkt. 174-2); Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,767 (Aug. 12, 2016). The parties have not cited to any litigation commenced to challenge that most recent denial, and the Court’s own independent research did not reveal any such litigation, at least in the D.C. Circuit Court of Appeals.
. The Kiffer court addressed the issue in the context of whether the defendants had failed to exhaust their administrative remedies by filing a petition with the Attorney General, as opposed to whether the district court had jurisdiction to consider the challenge. Kiffer,
. "In 1973, the Bureau of Narcotics and Dangerous Drugs became the DEA.” Gonzales,
. The particular facts could be determinative under so-called “active” rational basis review. However, that standard of review does not apply to marijuana’s scheduling under the CSA. See Pickard,
. In accordance with the CSA, the DEA requested a scientific and medical evaluation and scheduling recommendation from HHS. Denial of Petition,
. Defendants did not specifically object to the Report and Recommendation’s conclusions regarding their Tenth Amendment claims. (See Dkt. 174). The Court is not required to review de novo those portions of a report and recommendation to which objections were not filed. Male Juvenile,