In this recent post, I argued that folks reacting to what President-elect Biden's decision to tap Judge Merrick Garland for AG might mean for the future of federal marijuana policy were reading too much into Judge Garland's decision to join a 2013 D.C. Circuit decision holding DEA's refusal "to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious." See Ams. for Safe Access v. DEA, 706 F.3d 438, 440 (D.C. Cir. 2013). That was so, I explained, for at least two reasons.

First, in Americans for Safe Access, the Court went out of its way to emphasize just how "limited" its decision was, explaining, for example, that it was not asked to decide:

  1. whether DEA was right about marijuana's lack of accepted medical use in treatment in the U.S. Id. ("On the merits, the question before the court is not whether marijuana could have some medical benefits.");
  2. whether DEA's absurd five-part test for making that determination is compatible with the Controlled Substances Act's plain language or even common sense (it defies both). See id. at 450 ("Petitioners do not seriously dispute the propriety of the five-part test .... "); or even
  3. whether the notorious Catch-22 that results from DEA's five-part test–i.e. marijuana must remain in Schedule I because of a lack of scientific research that DEA won't let anyone do because marijuana remains in Schedule I–is defensible under any legal (or rational or moral) standard. See id. (noting that petitioners failed to raise the argument that DEA "had foreclosed the research that would be necessary to create sufficiently reliable clinical studies of marijuana's medical efficacy").

Instead, assuming the propriety of DEA's unlawful standard, the Court answered a single "limited question"–"whether the DEA's decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious." Id. at 440. What's more, in answering it, the Court had to be especially deferential to DEA:

“The scope of review under the ‘arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). On the record before us, we hold that the DEA's denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard.

Id. (emphasis added).

In short, Judge Garland's decision to join the majority opinion in Americans for Safe Access really just shows that he agreed with the opinion's author (Judge Harry Edwards) that the Petitioners in that case didn't make any of the right arguments and weren't up to the "difficult task of showing that the DEA has misapplied its own regulations." It tells us nothing about his views on the tougher questions the Petitioners left on the table.

Second, I explained that because of the very different roles federal judges and the Attorney General play in our system of separated powers, even if Judge Garland had ruled in favor of DEA on the tougher questions described above, it would tell us little about how he might view those issues as Attorney General. Unlike judges, who must defer to DEA on many questions, the Attorney General doesn't have to defer to DEA on anything. In fact, as the head of DOJ, DEA defers to him.

As an example of the commentary on this topic that I believed was off base, my earlier post cited an article Kyle Jaeger wrote for Marijuana Moment. I used Kyle's article as an example, I explained, because he's one of my favorite reporters on this stuff and because I know others rely on his work and trust it implicitly (for good reason).

I'm happy to report that in a more recent article on President-elect Biden's selection of Rhode Island Gov. Gina Raimondo (D) as his Commerce Secretary, Kyle appears to correct the record on Judge Garland a bit:

The president-elect’s pick for attorney general, Judge Merrick Garland, has not been especially outspoken about his views on marijuana policy. While advocates expressed concern about his commentary in a 2012 federal appeals case on marijuana scheduling, he doesn’t appear to have been publicly hostile to a policy change.

While I strongly doubt Kyle wrote that in reaction to my blog post (I doubt he even read it), I'm glad to see him placing less weight on Americans for Safe Access here. I also found his emphasis on "advocates hav[ing] expressed concern" about the case notable. It wouldn't surprise me at all if Kyle called several leading "advocates" in preparation for his earlier article about Judge Garland and heard the same "concerns" about Americans for Safe Access from all of them. As I said in my earlier post, even the best reporters will have a hard time reading the judicial tea leaves on questions like this. That is especially so when most of the people supposedly "in the know" don't really understand federal administrative law.

There is a serious knowledge gap among the "thought leaders" on marijuana and hemp when it comes to federal administrative law. And mark my words, this blind spot will only become a bigger and bigger liability for the movement and industry as federal regulation ramps up in the coming years. If you ask me, that is far greater cause for alarm for anyone concerned about the future of federal marijuana policy than any question Judge Garland asked at oral argument almost a decade ago.

Marijuana Moment Corrects Record on Judge Garland
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