An excellent post at the New Amsterdam Psychedelic Law Blog: The meaning of the DEA’s recent victory in ASA v DEA
The article posits that petitioners made a mistake by attempting to show that the DEA’s requirements for determining that marijuana had an established medical use had been met, when in fact, the DEA makes that threshold impossible to meet through a procedure that is not legal. They should have instead attacked the DEA’s capricious rules.
Once you accept the standard designed by the DEA to keep cannabis and other psychedelics prohibited forever, just give up. Such an approach is a disaster, as the Court’s holding demonstrates. The DEA operates in a parallel universe of legal sophistry, a labyrinth of obfuscation and denial, the purpose of which is to maintain cannabis prohibition as an expression of an ideological position as to the nature of “mental health” and “mental illness.” […]
The DEA promulgated a regulation requiring that a petition to reschedule cannabis show that there is a CAMUIT [currently accepted medical use in treatment in the United States]. There is no basis whatsoever for that standard anywhere in the Controlled Substances Act. The DEA created it out of thin air. It is actually directly contrary to the CSA. The CSA does not require proof of medical use before conducting a hearing. It’s an obvious matter of logic: whether there is a medical use is determined at the hearing on the petition and therefore it cannot be the threshold issue in the petition for initiating the hearing. It is the conclusion to be reached through consideration of evidence.
Interesting. Worth doing a little more reading on the subject. I’d love to see the DEA challenged directly on the arbitariness of it procedures in a willing court.
thanks for posting this Pete, it was on my to-read list.
I’m not sure “arbitrary and capricious” are really the right words to describe the problem with the DEA’s decision. I mean, I don’t think they flipped a coin before deciding not to put themselves out of a job. “Arbitrary and capricious”? More like “self-interested and corrupt.” And of course, the REAL problem with the scheduling decision is that it was being made at all. The hubris of bureaucrats and politicians deciding what substances they will “allow” to their fellow human beings is staggering.
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Judge Young certainly thought that arbitrary and capricious was the appropriate description of not re-scheduling cannabis. He used that phrase 5 times in his 1988 ruling, using it 4 times in his list of findings that led him to believe that the law requires re-scheduling.
I’m thinking that “arbitrary and capricious” is a phrase that’s legally defined with a specific meaning in context. Kinda like “time is of the essence” in real estate contracts. But up until I read the ruling in ASA v DEA I thought Judge Young was just being verbose. But you’re the lawyer Francis, you tell me. Verbosity or legal magic words? Perhaps both at the same time?
Yeah, I know it’s a legal term of art. But I think the point stands. BTW, God’s honest truth, as I was writing that post, I thought to myself: “I bet Duncan’s going to call me on that.” 🙂
I feel like if you dig to the heart of any unjust law, you will no doubt find that its very mechanism is a corruption of the law… in this case, a power grab was allowed to stand, and now a government agency with no interest in “health” standards is allowed to create its own litmus test; in this case the bar is unreachable by design, so that the rules may never be changed… to ensure that funding continue.
After all, if we actually held to the “medical use” bit, there would be a number of drugs that would be immediately scheduled down if not descheduled entirely (marijuana, LSD and other “safe” ethenogens, ecstacy…).
And how would an arbitrary government agency exist without funding, even when the people don’t want it? Self-created rules is the answer.
I have always thought that the reading of the commerce clause was a loomingly obvious reach. Apparently it takes something obviously rights-destroying, like SOPA/PIPA, to raise the ire of the masses in sufficient numbers. “A holocaust in slow motion” just doesn’t have the same push, apparently.
Counterfiet-Funded, and Ruling by Decree. They really do turn Purple if you bump your Chest against Theirs. All Arrogance,, All the time. Yawn. Too Funny.
Is there a solution? Is there another workable angle at all to rid the country of the schedule 1 problem?
The solution is already in motion. Politics just slows things down to the point of hardly making any progress at all sometimes. But IMHO, the fact that ASA v. DEA even got a hearing is a sign that the end is nearing. As the truth comes out more, our cause becomes stronger. That’s the key to all this — disseminating accurate information.
I would like to apologize in advance for the length of this missive. I usually follow the rule drilled into my head by my VN War Veteran instructors to ‘Keep It Short and Simple’, but something like this has far too many dimensions for a few brief paragraphs.
I agree with NT Greene, for reasons too numerous to convey, here. But the salient ones are the most important.
Friends, ever heard of something called ‘turgor’? It’s the built up hydraulic force that allows a tree root to buckle an adjacent concrete sidewalk. It take a long time to build up, but once it has, there’s no stopping it.
The ‘turgor’ of drug law reform has steadily, steadily, steadily grown greater and greater as its’ philosophical underpinnings match that of the ascendant generation(s). This has now connected with the generational knowledge of the lies they were told, who told them, and why. A confluence of many factors has taken place; the advent of a ‘perfect storm’ of reform is here.
The engine has been running for decades, and now, at long last, the gears have meshed and the drive is engaged. The vehicle, our vehicle, is finally, in a big, noticeable way, moving forward. And it will only stop now if we hit the brakes.
My generation did, through stupidly thinking that, as Washington warned us, ‘reason and eloquence’ could disarm power-mad, mendacious authoritarians, and were blind-sided by the DrugWarriors appealing to the their supportive generations’ equally native authoritarianism (namely, the control-freak parents of the ‘concerned parents movement’) and cynically used them to further line DrugWarrior pockets. (Dan Baum’s seminal work on this subject, though 20 years old now, nevertheless gives a very good social history about how that happened.)
We thought we’d have legal weed by the end of the 70’s, and instead got the Reagan phase of the DrugWar. The rest is history.
Well, it’s time to make some history of our own, and in WA and CO we did. The prohibs take us much more seriously than they did before. I monitor their main sites like DEAWatch and can tell you they have dropped the condescending remarks about ‘wacky legalizers’ and are sweating bullets trying to figure out how to stem a tide that’s flowing while theirs is ebbing.
WHICH IS WHY WE MUST DRIVE ON!. This talk of waiting for the 2016 campaigns is the kind of crap my generation engaged in, and it cost, not just us, but all the following generations.
Any history buffs out there? Look up ‘Anzio’ and you’ll understand perfectly the dynamics of what I am talking about. Wait, and we”l give the opposition time to steamroller us. My generation thought we had the momentum, and thought we could coast to victory, and look what happened. My generation had no right to be so complacent; neither do those who come after us.
Because these opportunities only come around once a generation, and because of the DrugWar-sired police state becoming ever more difficult to challenge, and may soon be cemented into place, WE MAY NEVER HAVE ANOTHER CHANCE!
A vote for cannabis law reform is a punch in the face and kick to the bollocks to the authoritarians; just look at what happened after the votes: the Administration has come to a screeching halt and stopped in its’ tracks (as I said they would), realizing they’re not going to have a nice stroll in the park and effortlessly crush reform like the DrugWarriors are used to; what used to be their park has become a political minefield with extremely high stakes for a misstep.
Because a misstep threatens to do more than upset, not just drug laws, but finally strip away the last layer of the facade covering a wholly corrupt government. Move against the politically expressed, popular will of the people and you invalidate the last vestiges of ‘legitimacy’ of a fraudulent ‘democracy’, showing the corporatism below it.
Soooo much more is at stake than most can possibly believe. Make no mistake, friends: Cannabis law reform is actually tantamount to peaceful political revolution in disguise. And our hopelessly crooked opponents know that very well.
I have to totally agree with the Cap’n. I’ve been there and seen it. Little movements blinded us into believing we “were there.” Woodstock was a good example.
However, we will never be there if we “slow down.” While the tide of battle has turned, there are still many engagements ahead of us and you gotta know the final clash will probably with the extreme fanatics.
Agreed,,waiting is self destructive,,go for it in 2014 and if it doesn’t take you have a better chance in 2016.
Waiting is playing into the drug warriors hands,it goves them more time to mount s defensive movement and right now is the time.
They are so busy fighting every legalization/decriminalization of drugs around the world that they are kept from directing all their resources on fighting us,,I would venture to say that any day we will hear from ONDCP or HS that they need a very large injection of funding,way above the budget requested,and the budget hasn’t made it through the approriations committee,,with Lehey waiting on them to ask for more. I hope he was not just paying lip service to ending the wasteful spending by the drug warriors.
Wow, I picked up a dislike somewhere. Regardless.
The time has come for us to stop at nothing short of a full rout. If we bring down one wall, we must strike at the rest as well. To stop short is to ignore the lessons of history and make the same mistakes anew, which would be a terrible thing when we are approaching even greater victories than these. The crime of those who came before us (or, when we came before perhaps) was not of bad ideas, but complacency. Let us not be complacent. Let us be hypervigilant. Let them think of us while awake and dream of us at night.
Our time has come. Any sensible person can look at the sway of the trees and see how the wind blows.
I do believe they are in deep, deep doo-doo. The tide of battle has finally turned, and now the even the most dedicated drug warriors are looking to defect. Hiya, Tom Tancredo (I still think you’re a schmuck, Tom).
My friends in California got a fire lit under them by Washington and Colorado, they are SO pissed they weren’t the first, I do believe there will be a measure there every election until it passes, and I expect that promptly. Alaska will be in there soon, too.
I don’t expect the various bills in various legislatures will get far, but they expose more people to the ideas and the debate, so they work in our favor too.
Yup. I’m here in Washington, but I’m not slacking (just insane busy. Finally looks like my second adopted son will be coming home soon! JEEEZ, that was a big pain!), not until this is done. And then, because I know the prohibitionist authoritarian mindset is never going away, I’m gonna be hyper vigilant (in a way that only a PTSD sufferer can…) to never allow them to take us back.
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The fact that we were mistaken during the Carter administration doesn’t mean that we’re mistaken now. In 1980 we were fooled by logic and thinking that government authorities were reasonable people. Neither of those items figure into my thinking in 2013. I fully believe that the war on (some) drugs is a shared, mass insanity and that this mania is in process of collapsing.
For a better understanding of what I mean you can read a book named “Extraordinary Popular Delusions and the Madness of Crowds” by Charles MacKay. It’s nothing new, not at all. That book was first published in 1841. But every mania has a similar profile. Logic won’t stop the mania when it’s building up, and nothing can stop their collapse once a few people realize they’ve got a handful of dog turds instead of the gold bars that they thought they were holding.
The more things change, the more they stay the same.
I agree, Kapt.
http://tinyurl.com/aqljl64
Momentum still present.
These guys have a hand behind our back with a dagger – the drug testing industries. Not to look now but Congress has been pushing drug testing into unemployment and welfare in States through some shifty maneuverings. This burgeoning drug testing industry is a steamroller, and a can of worms all in one.
Best solution I can see is momentum to legalize.
Agreed Capt. Now my generation is looking at smoke and mirrors and cannot see how the War on Drugs is the only reason how two large steel towers fell from the sky in New York City (if it was an inside job, we can bet our bottom dollar it was funded with drug money, since thats how Black Ops receive funding as seen in the CIA). Your Nam officers told you to keep it ‘short and simple’, but our OIF officers told us that “Organized Crime is the only reason why you are here†(Actual Quote). Our generation is the first generation to witness the War on Drugs costing us $3 trillion in one decade alone (Brown University; NY Times study on the cost of 9/11 and War on Terror) . . . now our biggest threat to the war on drugs isn’t just an evil corrupt government locking us up and getting more practice for destroying the Constitution, but a total economic collapse similar to the U.S.S.R’s when Heroin defeated them in the 1980’s with 15,000 dead troops in Afghanistan, thus moving the cliff that they fell off from in 1991 much closer than it should have been. The War on Drugs is one of the biggest if not the biggest reasons as to why millions of Americans (those with no arrest record) cannot get a job or are underemployed. What happens when a failed economy cannot teach the kids: we’ll have a future generation too ignorant to utilize the political process. The last time one of the most powerful economic powers in the world collapsed that nation killed millions of people through legal laws that today we call the Holocaust. Another ‘War on’ something could be created to punish the scapegoats in a failed economy. If ‘We Hit the Brakes’, we might not have much left in the gas tank to change anything for the better in this nation, let alone drug reform. What happens if the War on Drugs creates a new war out of fear and mistrust -even once all the dope and pot is legal?
excellent pair of articles (including madmen rule you). franz kafka had nothing on these madmen, and lets not forget the mad women: leonhart, haag etc
Haag will be executed by her own Machine, just like in Kafka’s ‘Penal Colony’. Even she will flip the switch on for her own death, just like the commadant in the story.
No, I think when the mask falls, Haag will be shown to be a giant cockroach
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This analysis suffers from the same fallacy as the DEA’s. Truncating “currently accepted medical use in treatment in the United States” to “currently accepted medical use in treatment (CAMUIT)” is reading the states (federalism) completely out of the statute. I don’t know why everyone wants to disregard states’ rights, but the position you are taking is unconstitutional. If you want an acronym, it should be CAMUITITUS, not CAMUIT.
I think it has more to do with the last ‘ITUS’ being essentially implied. After all, we’re talking about a US agency determining US policy, so it’s a little redundant.
Also, I am not sure what fallacy you are referring to, as a reasonably clipped acronym is not a fallacy. And, if anything, we are trying to read things in such a way that actually respects states’ rights as, well, 18 states recognize MM but the feds refuse to at all. After all, if the feds descheduled it tomorrow, it would remain illegal in most states under their own state level CSA analogue.
wow N.T. . . . you’re getting a lot of ‘Thumbs Down’ for good content on this issue.
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Gosh Carl, I wish I could say something to ease your mind. I think you’re being unfair to the regular visitors of this blog. We most certainly do understand and believe in what you call “States’ rights”. But we’re not enemies of freedom, not by a long shot. I’m no expert in political administration. It’s debatable whether I’d even know the name of my State’s Governor were it not for this controversy. After 35 1/2 years of being subject to the insanity of our government authorities I think that I understand your anger from personal experience. But in addition to not being an enemy of freedom I’m also most certainly not an enemy of Carl Olsen. Quite frankly I think that you’re work has been a significant part of our progress. As far as I’m concerned if you think anything in my strategy is wrong, or that I’ve missed something significant, or that there’s something I could do better all you need to do is to say so. But for the love of god please don’t be pissed off at me. We are on the same side.
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Just in case the people reading this don’t know, Mr. Olsen is the guy that forced the Iowa Board of Pharmacy to recommend that cannabis be moved to Iowa’s schedule II. The BoP refused to hear the petition which was filed in 2008. Apparently they don’t have the power to refuse and he got them Court ordered to hear the petition. After hearing the evidence the Iowa BoP voted unanimously to recommend re-scheduling. Iowa’s rescheduling criteria is identical to that of the Feds under the Uniform Controlled Substances Act so he may well be the most qualified person on our side of the table in this particular matter.
Don’t forget Carl that the DEA also violates the 1890 Sherman Anti-Trust Act as seen in hemp (getting paid to make sure China sells hemp by way of keeping American hemp from competing, since boycotting American goods within the U.S. while allowing similar products to exist is illegal) and this current DEA victory since the DEA get paid to set up unmentioned standards as to what is medicine or how to prove the medicine etc, meaning the DEA won’t let other agencies or private groups compete for said standard and they, the DEA get paid –make profits to do so. If we cannot defeat the DEA through this method, we have other ways, such as proving they no longer fit the definition of a Federal Agency under the DOJ because they get paid to make sure China etc are the only nation allowed to sell Americans there hemp, while getting paid to make sure Americans don’t sell hemp (which hemp is legal in the 1961 U.N. Single Law) in America and globally. We don’t consider Wal-Mart or Toyota to be a part of the Department of Justice now do we? Surely we can show the feds that the DEA violate Federal Law when in regards to commerce, trade, monopolies etc, which might give us more leniency to create our own (private, Federal, local and State) standard when suing in court.
Canada exports hemp to these united States of America, too.
“I’d love to see the DEA challenged directly on the arbitariness of it procedures in a willing court.”
Well, considering the history of challenges to the DEA, I’d say it will take another 25-30 years before this one makes it up to bat. And most of us will be dead.
They (DEA) really are that good at stalling the advance of truth and justice. It’s their “mission” now, just keep stalling and wait until we die off. Oh, and keep collecting those massive drug-war budget dollars!
Protect & Serve (Themselves!)
I think that by showing how the DEA violates Federal Law in regards to the 1890 Sherman Anti Trust Act might help since the DEA get paid to make sure China is the only nation to sell hemp in America by boycotting American hemp, which means the DEA are not eligable to be a Federal Agency (unless Wal-Mart and Cost-Co are), thus meaning we cannot even begin to prove that the DEA belong to the DOJ (unless Nike and Hersheys are a part of the DOJ). Since the DEA get paid to work, we can prove the DEA’s only role in the world and U.S. is to make sure foreign countries sell their products to America in our stores. Boycotting is illegal in America when we don’t boycott other products or similar products (like paper, gasoline, Chinese Hemp, food etc).
Anyone who was at oral argument for that case already knew this. One of the judges on the panel chided Elford for not including this argument in his brief. ASA does great work, but this was a bad oversight on their part.
https://twitter.com/Doctor_Iffle/status/293800429316354048
outstanding thread of comments folks… *bows*
I’m appreciating the commentary on whether ’14 or ’16 for the next legalization push. I’m listening to both arguments, tho’ my preference is growing for sooner rather than later.
Because I don’t like a sour stomach in the mornings I hardly visit Phil Smith’s This Week’s Corrupt Cops Stories so early. I think tho’ that I’ll have to start making it a weekly stop again, it’s just sooo disgusting, so frequent and spreads all across the land and hits damn near all levels of law enforcement from guards, to cops to sheriffs to TSA and border guards. Good lord!
So if you haven’t ever read it or haven’t in a while, it’s an eye opening tour:
http://stopthedrugwar.org/taxonomy/term/27
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In the debate over whether to put an initiative on a State ballot in 2014 or 2016 I think looking at historical percentages of registered voters in Presidential elections vs mid-term elections is prerequisite. Here’s the numbers for the State of Washington:
http://www.sos.wa.gov/elections/voter_participation.aspx
It’s a substantial difference. In 2010 49.82% of an estimated 5,149,729 eligible to vote did so. In 2012 it was 60.77% of an estimated 5,221,125 eligible voters.
It’s going to cost about $2 million just to get it on the ballot in California in 2014. Yes it’s possible to cut that down by using volunteers but reality is that almost all proposed referenda that use volunteers don’t get on the ballot. When they do it’s almost always in States with a much lower number of required number of signatures. In 2014 California’s going to require more than half a million signature to put a referendum on that ballot. Realistically that means collecting much closer to a million signatures than to 1/2 million because of the unqualified people that sign the petition regardless.
But I’ve got to admit that stuffing prohibitionists like hunting trophies is a very attractive idea but think it’s illegal to do that. We could get a volunteer to do the first one and see what happens. A bunch of stuffed prohibitionists would make a most excellent display down at the Smithsonian’s Museum of Unnatural History. Ooops, I thought allan said taxidermy, not taxonomy. My bad.I look for CA legislature to pass a law before the voters get the chance,,it’s one of those “control issues” that all politicians are afflicted with,,spurred heavily by the need for jobs and tax revenue.
cop smuggling coke into a jail triggers metal detector? could he have been so dumb that he concealed it in his underpants in metal containers?
fellow Oregonion Johnny Green over at the WeedBlog makes an excellent point concerning Oregon in ’14 or ’16:
I like the symbiotic opportunities. Efforts to get out the vote will help any marijuana reform measure on the ballot, and any marijuana reform measure on the ballot will help get out the vote. Win-win!
Mutually beneficial symbiosis.
Allowing the DEA to frame its own argument will happen again if opponents and the courts keep jumping through the DEA’s hoops. In this case, we see the DEA pulling the old hoop-test trick by removing the hoop, which is very dangerous to one’s head.
I think part of the problem is one of conquering belief. The empirical evidence points to the DEA as being a quasi-religious body, one exercising and imposing a particular and peculiar moral dogma, often absent support by science. The morals being contested are ones dedicated to eliminating an adult citizen’s access to, or use of, certain chemical highs and lows. As a morals issue, it’s not necessarily a health issue. Morals can be exclusively religious in origin, however, and still hide behind a secular or scientific motive.
The trick is illustrated if a group were to sue the DEA for violations of separation of church and state. In such a case, one runs into a legal wall called the Lemon Test. The Lemon Test says that in church-state violations, if it can be shown that the action in question is motivated by something else besides religion, then the action or law stands as being not religious, even if it is in reality. Particular court drug cases involving Native Americans have granted relief by relying on deep-seated, lengthy, religious traditions to ascertain the legality and continuance of their peyote rituals. Thus would be the need for the DEA to emphasize fake or minor health issues in order to sidestep the religious or moral arguments that argue on behalf of drug use.
Since the empirical evidence rarely fits the DEA’s agenda, any appeal to such evidence must necessarily direct the plaintiffs and court into an area of legal oblivion where there’s no way out. The more developed the biosciences become, the greater the threat to the DEA’s case, and the greater the DEA’s reliance will be on procedural, legal facades that avoid discussing the science.
Countering this dilemma requires that distinctions between morals and science be made uppermost in the minds of plaintiffs who challenge the DEA’s juggling act. If morals and science are not encompassed together in a collective legal strategy led by the plaintiffs, the DEA response will be to emphasize one to avoid discussing the other.
As a religious Issue: The DEA think allowing Islamic terrorists to sell drugs, kill our troops, blow up our embassies, destroy American corporations, attack us on our own soil and in international waters etc as acceptable losses in keeping drugs illegal shows that the DEA are trying to push the Jihadist version of the Islamic religion onto the American people and everyone who is a member of the U.N. as seen in the Philippines, England, Spain, India etc. At the Very least, the DEA are trying to push the religion of our enemies onto the world, if not the DEA’s own beleifs, which would violate the Seperation of Church and State since I’m required to pay taxes, which pays the DEA, thus being forced to allow Jihad to utilize drug money for their cause. This is more true in the DEA being in Afghanistan since their role keeps drug prohibition on the table, which pushes illegal Afghan dope onto our tables, which pushes Jihad onto NYC and everyone else.
It’s like a lot of things government does: do anything if it’s useful and expedient. The philosophy of a psychopath. Consequences be damned.
Doing anything, like selling heroin internationally, cost the French their colonial grip over Viet Nam. Truman tried to make it all better. That’s when things got really nuts. Marseilles. Nixon. Reagan.
It’s out of control now. Nothing to do now but to let it play itself out, like some invading virus that perpetuates its existence by becoming institutionalized, everywhere, encoded into the social DNA of war and misery.
OT: Anyone want a franchise?
Sub shop chain is high on Boston
“The core to our theme is certainly cannabis-driven and counterculture-driven,†Cheba’s chief operating officer Matt Trethewey said. “We think it’s funny that a plant is legislated, and there’s laws around it.â€
http://tinyurl.com/bjdq54t
When I was in Cambodia, we could get ‘happy shakes’ and ‘happy pizza’. When we ordered pizza, we asked about the ‘happy’ and were asked how happy we wanted to be. Our reply of ‘very happy’ resulted in a pizza which delivered. Good times.
http://www.huffingtonpost.com/rob-kampia/ending-marijuana-prohibition_b_2534869.html
Article about MPP goals for 2013. If they can accomplish most of these it would be remarkable.
I’d like to see the DEA challenged on the conflict of interest issue. The DEA, whose sole reason for being is to enforce the prohibition of certain controlled substances, also get to decide which substances are controlled. Why would the DEA ever voluntarily decide that they no longer need to exist?