Marijuana and the Tyrannies of Scheduling

<p><span>The Drug Enforcement Administration (DEA) is about to reschedule marijuana under the Controlled Substances Act (CSA), marking an historic shift in federal policy toward the drug. This Essay analyzes the novel reasoning behind the agency’s marijuana rescheduling decision and its implications for <i>other</i> Schedule I drugs, including promising psychedelics like psilocybin and methylenedioxymethamphetamine (MDMA). The Essay begins by explaining how an agency reinterpretation of a key statutory scheduling criterion—“currently accepted medical use” (CAMU)—paved the way for rescheduling marijuana after multiple prior attempts had failed. In the past, the DEA insisted that CAMU could be demonstrated only through rigorous science, namely, by successfully completing carefully controlled clinical research trials demonstrating that a drug is effective at treating a medical condition. Because the CSA limits the ability to conduct such research on Schedule I drugs, the agency’s CAMU test proved nearly impossible to satisfy, imposing what I call the “Tyranny of Scientists.”&nbsp; In its latest marijuana rescheduling decision, however, the DEA suddenly announced that CAMU could also be demonstrated through experience, namely, by accumulating widespread, state-approved medical use of a drug. Given the sheer number and popularity of state medical marijuana programs, the agency had no trouble concluding that marijuana has a CAMU under the new experience-focused test, even though there are still no rigorous clinical trials that would satisfy its original science-focused CAMU test. Although the agency’s new CAMU test applies to all drugs, I argue that it is unlikely to facilitate rescheduling of any other Schedule I drug.&nbsp; In effect, the new test requires convincing popular majorities in a large number of states to pass laws legalizing medical use of a drug the federal government has banned outright. This new demand imposes what I call the “Tyranny of the Majority.” The Essay explains that while marijuana advocates were able to convince enough voters in enough states to satisfy this daunting test, no other Schedule I drug is likely to repeat that feat anytime soon (if ever). But the Essay proposes a way to soften the twin Tyrannies of Scheduling: I argue the DEA should de-emphasize CAMU in scheduling decisions. The agency has long insisted that a drug with no CAMU must be placed on Schedule I, regardless of its harms. But the agency has never offered a persuasive rationale for making CAMU paramount in scheduling decisions, and the Essay shows that the agency’s approach is contrary to the text and purposes of the CSA. De-emphasizing CAMU would reduce the distortive influence the tyrannical CAMU tests now wield over the administrative scheduling process, resulting in more rational scheduling decisions that better reflect the benefits and dangers of controlled substances, as Congress intended.</span></p>