FYI: I provide more commentary on this topic here.

I don't have much time to post, but I feel compelled to correct some misconceptions about what President-Elect Biden's decision to nominate Judge Merrick Garland as his Attorney General might mean for the future of federal marijuana policy. I've been reading the commentary on the topic so far, and it's largely ill-informed. I wish I had time to spell out all the reasons why. For now, though I'm just going to bust one of the most common myths I'm seeing out there.

Virtually every report I've read touts the D.C. Circuit's decision in Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013), as proof that "he believes in deference to DEA when it comes to drug scheduling." I pulled that particular quote from this story written by Kyle Jaeger of Marijuana Moment. I chose Kyle's write-up because I regard him as one of the very best journalists out there when it comes to marijuana and the law. If he's getting this wrong, you can bet many others are, too. I also chose him to emphasize that while I disagree with many of the journalists and talking heads who have weighed in on this issue, I don't mean to imply that they're stupid or bad at their jobs. As far as I can tell, Kyle is very smart and quite good at his job. The problem is that without a law degree and fairly intimate familiarity with Judge Garland's background and writing as a jurist and scholar,  federal marijuana laws, and the AG's role in implementing them, it's very difficult to get a good read here. I'm no journalist, but I do have the background and training necessary to clear up some of the confusion here.

Anyway, back to the Americans for Safe Access Case. As mentioned above, Kyle and many others are holding it up as proof that an Attorney General Garland "believes in deference to DEA when it comes to drug scheduling." For a number of reasons, that's simply not right.

First, the views of Merrick B. Garland the judge aren't reliable indicators of how Merrick B. Garland will approach issues as AG. Why? Because judges--especially those on federal appellate courts--are duty-bound to defer to executive agency decisions on a variety of topics. The AG is not similarly constrained. And because the AG runs DEA, the idea that Judge Garland's deference to DEA in Americans for Safe Access means he will defer to DEA as AG is especially wrongheaded. In fact, just the opposite is true. As AG, Judge Garland would be in charge of DOJ--the agency from which DEA takes its orders. Put simply, DEA would defer to him.

Second, even setting the differences in the roles of AG and judge aside, the Court's deference to DEA in Americans for Safe Access is a silly data point on which to rest a prediction of how the judges on the panel might view federal marijuana policy. That is so because with a few exceptions not relevant here, federal courts decide cases presented to them based on the arguments presented to them by the parties, and in Americans for Safe Access, the parties didn't present any of the arguments against DEA's approach to marijuana that might matter to Judge Garland as AG. The Court even points this out, emphasizing that the petitioners in that case "d[id] not seriously dispute the propriety of the five-part test" that DEA has used to lock marijuana in Schedule I even today despite widespread acceptance of its medical use by the traditional gatekeepers of the medical profession under our federalism--the States. Ams. for Safe Access, 706 F.3d at 450 (emphasis added). Instead, they merely challenged the reasonableness of DEA's application of the five-part test. As the Court explained, that questionable litigation strategy "left [them] with the difficult task of showing that the DEA has misapplied its own regulations." Id.

By the way, for those interested, we do raise more serious challenges to DEA's approach in our lawsuit that is currently pending before the Ninth Circuit, which I cover here and here.

In sum, what Judge Garland may think about DEA's application of its unlawful standard is utterly irrelevant to how he might wield the vast authority of the Office of the Attorney General. A better question is whether he will appreciate and care about that standard's manifest unlawfulness and the widespread harm it has left in its wake. If he does, he will have authority as the head DOJ (and thus DEA) to fix the problem quickly and easily.

So if Judge Garland's vote with the majority in Americans for Safe Access isn't a good data point for predicting how he might approach marijuana policy in the role of AG, what is? I have a lot to say on that question. For now, though, I'll simply direct your attention to a different body of writings that as far as I'm aware, nobody is talking about: His work as an antitrust scholar. While the articles I'm about to discuss are old, they are far more relevant to our topic than Americans for Safe Access. For starters, unlike the opinion in that case, which were written by someone else, Judge Garland wrote these articles himself. And he did so without the constraints of the judicial role discussed above. As I explain next, though, what really makes these articles intriguing, is their substance.

Long story short, during a brief period in the 1980s, Judge Garland taught antitrust law at Harvard Law School. During that time, he published a series of law review articles criticizing the views of several other antitrust scholars who endorsed expanded federal authority to preempt state laws on antitrust grounds. See Merrick B. Garland, Antitrust and State Action, 96 Yale L.J. 486 (1987); Merrick B. Garland, Antitrust and Federalism, 96 Yale L.J. 1291 (1987); Merrick B. Garland, Antitrust and Federalism: A Response to Professor Wiley, 96 Yale L.J. 1291 (1987). Judge Garland dubbed these scholars "revisionists" who urged "courts [to] substantially narrow the scope of state action immunity to permit the preemption of a greater number of economically inefficient state regulations." Garland, Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. at  486.

Among his criticisms of their revisionism, was its failure to appreciate the importance of the traditional role of state power under our federalism: "It is a respect for the decisions of elected local governments," he explained, "that counsels hesitation in adopting such a dramatic restructuring of American federalism in the absence of any mention of the possibility in the legislative history of the antitrust laws." Garland, Antitrust and Federalism: A Response to Professor Wiley, 96 Yale L.J. at 1295 (quoting Parker v. Brown, 317 U.S. 341, 351 (1943) ("In a dual system of government in which ... the states are sovereign, ... an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress.")); Garland, Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. 487  (emphasizing the importance of "deference toward state regulation" as matter of "respect [for] the results of the political process, tempered only by the compromises needed to accommodate respect for that process at both the state and federal levels"). In the concluding paragraph of one article, Judge Garland summed up his thesis, explaining that the "fundamental values" of "American Federalism" "must be taken into account in any effort to divine congressional intentions" in federal legislation:

Application of the Sherman Act to such legislation has implications for values far more fundamental to our society than those contained within the four corners of antitrust law alone, values which Congress shares and which therefore must be taken into account in any effort to divine congressional intentions. It is to those more fundamental values—particularly a respect for the political processes of American federalism—that the antidelegation rule responds.

Garland, Antitrust and Federalism: A Response to Professor Wiley, 96 Yale L.J. at 1295.

Now ask yourself: How is the man who wrote that likely to view DEA's treatment of a historic wave of state laws accepting marijuana’s medical use as categorically irrelevant to whether marijuana has a "currently accepted medical use in treatment in the United States" under the CSA?

I have much more to say on this topic, but will have to leave it there for now. Let me know what you think in the comments!

Recent Commentary on Judge Merrick Garland and the Future of Federal Marijuana Regulation Is Getting It All Wrong
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