The Controlled Substances Act states explicitly that:
“A drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for [schedule I and II substances include] (A) the drug or other substance has a high potential for abuse.”(4)
The statute allows for exceptions to be made in accordance with international treaty obligations. However, 1) no treaty obligation can require the U.S. government to deny due process and/or equal protection under the law to any of its citizens and 2) the U.S. Court of Appeals has ruled that regardless of treaty obligations rulemaking petitions must first be evaluated on merit.(5)
The Court of Appeals also ruled in 1977 that they believed that the U.S. treaty obligations limited the scheduling of marijuana to schedule’s I or II. The Court did not rule on the responsibilities of the United States as a signatory of the Single Convention Treaty when faced with clear evidence that marijuana is not only mis-scheduled domestically (in the CSA), but internationally as well (in the Single Convention Treaty.)
Most importantly, the Court clarified the important issue of legislative intent in regards to interpretation of 21 USC §812(b); Congress intended the abuse potential of a drug to determine the severity of its regulation.
“If, as respondent (DEA) contends, a determination that the substance has no accepted medical use ends the inquiry, then presumably Congress would have spelled that out in its procedural guidelines. Its failure to do so indicates an intent to reserve to HEW a finely tuned balancing process involving several medical and scientific considerations . . .
“Admittedly, Section 202(b), 21 U.S.C. § 812(b), which sets forth the criteria for placement in each of the five CSA schedules, established medical use as the factor that distinguishes substances in Schedule I from those in Schedule I. However, placement in Schedule I does not appear to flow inevitably from lack of a currently accepted medical use. Like that of Section 201(c), the structure of Section 202(b) contemplates balancing of medical usefulness along with several other considerations, including potential for abuse and danger of dependence. To treat medical use as the controlling factor in classification decisions is to render irrelevant the other “findings” required by Section 202(b). The legislative history of the CSA indicates that medical use is but one factor to be considered, and by no means the most important one.”(6)
As the court cites in a footnote, the legislative history is clear that:
“A key criterion for controlling a substance, and the one which will be used most often, is the substances potential for abuse. . .Final Control by the Attorney General will also be based on his findings as to the substance’s potential for abuse.”(7)
While the legislative history contains a definition of potential for abuse, courts have acknowledged that legal doctrine must adjust to technological innovation.(8)
The history is plain. Marijuana was placed in schedule I on the presumption of a finding, rather than on the basis of a finding. Legally, this is a congressional prerogative. However the scheduling of marijuana was challenged in the 1980’s and while DEA rejected the proposed rule to remove marijuana from schedule I, it did so on its own authority. Marijuana is now a schedule I drug on account of executive rather than legislative action. Unlike the legislative branch, the executive branch does not have the constitutional prerogative to schedule marijuana on the basis of a presumed finding.
The present scheduling of marijuana is based on a presumptive finding by the Food and Drug Administration.
“FDA also concluded that abuse of the plant material may lead to severe psychological dependence in some individuals but that the information available was insufficient to determine with certainty whether the plant material produce physical dependence.”(9)
As cited above, the law states that a finding “must be made” to place a substance in any of the schedules. The legislative history clearly indicates that a finding on the dependence liability is essential to a drugs scheduling status. The record clearly shows that such a finding does not exist.