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A Federal Judge Could Rule In Favor Of Rescheduling Marijuana

schedule i 1 one marijuana


Sometimes when I’m with close friends, I ask them if they want to ‘smoke some Schedule I.’ They are always caught off guard by that question. Am I asking them to consume something that has a high chance of addiction, and contains zero medical value? After they realize I’m talking about marijuana, they always give a chuckle, and ask why I call it that. I call it that to highlight how stupid marijuana’s federal classification is, in a snarky way.

Like I always say, the fact that marijuana is a Schedule I substance is a slap in the face to logic and science (among other things). A federal judge in California has heard arguments recently for and against rescheduling marijuana. Jeremy Daw (The Leaf Online) recently wrote an article for Alternet, in which he makes some very interesting observations in the case that may suggest Judge Kimberly Mueller is leaning towards ruling in rescheduling’s favor. The main argument against the pro-rescheduling side is that there is no legal standing, which means the case would be lost on a technicality. With that in mind, below is an excerpt of Mr. Daw’s article:

Based on Mueller’s comments from the bench, combined with the pattern of delays in constructing her legal theory of the case, it appears unlikely that this judge will dispose of this question on purely procedural grounds. On the final day of oral argument in the case, for example, Judge Mueller posed a hypothetical to the attorneys in the case. “Suppose I reach a decision on the merits,” she said, “using either the rational basis standard or what one judge has called ‘rational basis with bite.'” It’s one of the only clues of her intent from an otherwise poker-faced judge.

The repeated delays in the written argument phase — three now — also favor a decision on the merits. While written opinions on standing can be as arcane as any other topic of law (if not more so), the area of law applying standing to drug law cases is relatively well-developed compared to the novel — indeed, historic — question posed by the merits: is keeping cannabis in Schedule I so out of step with reality as to be unconstitutional?

Finally, judicial economy must be considered. The dockets of federal judges are famously crowded; it makes little sense to devote five days of extremely valuable court time to establishing evidence relevant to the merits of the case if one didn’t intend to decide the case on the merits.

All of the points that Jeremy Daw makes are valid. Will Justice Mueller rule in favor of the status quo due to a technicality, even after she dedicated so much time towards hearing the case? You never know how the case is going to be decided until the final ruling has been handed down, but this is all very encouraging. Either way the case is decided, it’s almost a guarantee that the losing side is going to file an appeal. If you aren’t following this court case, you should be, as it’s extremely important.


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  1. ” In this case, FED govt has to come up with some mechanism who can grow – something similar to canada mmar license”

    Completely unnecessary. There are no restrictions — Federal or otherwise — on citizens growing medicinal herbs for themselves, and none are needed nor invited.

  2. I can think of only 2 outcomes.

    1. Judge will rule schedule 1 is unconstitutional and people have right to grow medicinal herbs at home (canadian supreme court did exactly the same 10 years back). In this case, FED govt has to come up with some mechanism who can grow – something similar to canada mmar license

    2. Judge will say “court can not do anything with regards to scheduling, though sympathize with defendants”. Nothing happens then.

    However, based on time/effort spent on this case, I would think judge will go with #1. Otherwise, it would be meaningless to have hearing in the first place.

  3. Stephen Weber on

    Won’t matter. No matter which side she rules for or against, the case will be appealed, and her delays indicate she is preparing her reasoning to withstand a reversal on appeal. Eventually the burden of proof will win out, I predict.

  4. Unless she gets a scary midnight visit from the DEA pressuring her to judge against .

  5. If she rules against cannabis being schedule 1, and the feds appeal, is there any chance of expediting appeals, on the grounds that lives are at stake?
    Maybe they will review their hideous decision in Gonzalez vs. Raich. No right to use cannabis even if it is necessary to save a life? How can such degenerate ways be the law of the land?

  6. Precedent can be overturned. When the Supremes invalidated ‘sodomy’ laws about 10 years ago, they overturned their own relatively recent ruling on the subject. Courts, like politicians, can ‘evolve’.

  7. I’ve been surprised by the number of folks that post about re-scheduling since it won’t change anything of consequence.
    You are absolutely correct in saying it should be removed from the CSA. PERIOD.

  8. Hopefully they’re REMOVE it entirely from the CSA.

    If they merely re-schedule it to sch. 2 or 3, it will then fall under the total control of the FDA / DEA with all the myriad Federal Regulations, Restrictions and Controls that are found on any other Pharmaceutical drug.

    That would eliminate the entire Amateur “medical” marijuana industry nationwide, as only FDA approved drugs for specific medical indications are allowed, and no company or person is going to fund millions of $$ in specific clinical trials which take years to complete if they can’t be guaranteed a patent on the meds to recover their costs. Furthermore, only DEA licensed BigPharma facilities may produce and distribute drugs, and only DEA licensed Pharmacists may dispense those controlled substances, and only after a DEA licensed Physician has written a valid prescription for the limited and specific medical indications that drug has been FDA approved for.

    Recreational Pot would be DEAD — since NO SCHEDULED Drug is approved for recreational use. Not one.

    DE-scheduling is the only solution.

    RE-scheduling will mean DECADES more of Prohibition and extreme Government Regulation … backed by Criminal Penalties as usual.


  9. Gonzalez v. Raich, where U.S. Supreme Court Justice John Stevens opened the door to a scientific review of treating marijuana as a Schedule I drug:

    We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I … Respondents’ submission, if accepted, would place all homegrown medical substances beyond the reach of Congress’ regulatory jurisdiction.

    Govt attorneys failed miserably in the court. Judge will rule in favor of defendants and schedule 1 unconstitutional. Eric holder will remove marijuna from schedules altogether before he leaves the office.

  10. The judge took the case based on supreme court foot note below . So, the ulitmate result should be people can grow marijuana at home. DEA can not make it schedule II. It will be just like alcohol (atleast I hope). Can DEA randomly say , you can not grow carrot at home or brew beer at home ?

    Gonzalez v. Raich, where U.S. Supreme Court Justice John Stevens opened the door to a scientific review of treating marijuana as a Schedule I drug:

    We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I … Respondents’ submission, if accepted, would place all homegrown medical substances beyond the reach of Congress’ regulatory jurisdiction.

  11. PatientPatient on

    More than one legal scholar disagrees with you, Helen:

    What will happen after?

    If my prediction is correct and Judge Mueller rules for the defense on the merits, the prosecutors can be expected to immediately move for an appeal and a temporary stay on her ruling until the matter can be heard by the 9th Circuit. Such a move could easily delay any ruling from taking effect until next year.

    In the unlikely event that such a motion isn’t granted, then the administrator of the DEA can be expected to immediately schedule cannabis in Schedule II — which happens to be one of the moves contemplated by the CARERS bill just filed in the US Senate.

    Thus, a favorable ruling by Judge Mueller will not by itself end the federal war on marijuana. Cocaine is listed in Schedule II, but any would-be Tony Montana in the US still has to worry about DEA raids.

    Nevertheless, it would still be a huge win. Just as Judge Walker’s Prop 8 decision had a massive effect on the national politics of gay marriage, so too could a favorable ruling by Judge Mueller finally begin to budge an intransigent Congress into finally respecting the will of the people who voted them in office. Passing the CARERS bill would be a cinch.


  12. Latest “official” ruling is scheduled for April 15 – unless there’s a third postponement …

  13. Judge can only make a ruling that Schedule 1 status of marijuana is unconstitutional in regards to the people involved in the case. It will likely be appealed and a request for a stay on the decision will be filed. Ultimately, higher and higher courts may get involved, to include SCOTUS. In my opinion, this may be the best, fastest way to get marijuana de- or re-scheduled.

  14. Which she is to a certain extent. It’s called PRECEDENCE … Refer to the gay marriage case in CA. Yes, it only applied to that one couple, but the PRECEDENCE set the stage for statewide, and ultimately nation-wide reform laws.

  15. Stephen Weber on

    Judge Kimberly Mueller, the federal magistrate who made history by granting defense requests for a five-day hearing on the constitutionality of the continued inclusion of cannabis in Schedule I of the Controlled Substances Act, was originally scheduled to meet with the parties of US v Schweder et al for a status hearing this week, but has delayed that meeting until April 15th.

  16. Even if Judge Mueller were to rule scheduling of Marijuana unconstitutional, it WILL be appealed all the way to SCOTUS! That’s gonna take 2 years at least for SCOTUS to get the case then 10 months to write the decisions. I know the guy involved in this case and those were the words right out of his mouth. If Obama does it, the next president can reschedule it with no recourse. The ruling was actually expected 2 weeks ago. But she’s talking her time writing her ruling b/c we believe she’s ruling in our favor and wants to have all the I dotted & t’s crossed

  17. Incorrect. The court ruling will only effect the 3 defendants for whom the Appeal was submited. If the judge rules in favor they will receive a more lienant sentence. It has absolutely no bearing on the rest of the country’s marijuana convictions. It could pressure the members of Congress to act. However a Republican controled caucuses will most certainly would not bring it to a vote.

  18. Silly Rabbit on

    I beleive you are incorrect in your statement ….. The Courts can rule on it or they would not be there …..

    Amazing thing about this case is the Court elected to hear the case!

  19. Silly Rabbit on

    Correct in the easy prey and to top it off ….. Weed users usually don’t put up much of a struggle say compared to a meth addict, Silly Rabbits!

  20. Larry Smalley on

    We the educated people of the world know that “CANNABIS” (a.k.a. Hemp a.k.a. Marijuana) can help HEAL our SICK, PLANET, ECONOMY! It all starts as soon as the SEED is PLANTED. If anyone tries to tell us DIFFERENTLY then THEY ARE EITHER LYING or IGNORANT! We all hope the judge is as educated with the truth as we are!

  21. AethiopicPecan on

    When the Marihuana Stamp Act was called for a vote on the floor
    of the United States House of Representatives, a Representative from New York
    asked what the Bill was about. The Speaker of the House of Representatives, Sam
    Rayburn, replied, “I don’t know. It has something to do with a thing called
    marihuana. I think it’s a narcotic of some kind.”
    When asked if the American Medical Association supported the
    bill, a committee member falsely replied that it did. After this brief exchange
    the Bill was passed.
    In actuality, the American Medical Association representative Dr. William C.
    Woodward, strongly opposed the Marihuana Stamp Act of 1937, when he testified
    at a Congressional hearing: “We cannot understand yet, Mr. Chairman, why
    this bill should have been prepared in secret for 2 years without any
    intimation, even, to the profession, that it was being prepared.” Cannabis
    hemp (marihuana) seed oil was widely used as a lubricant, water repellant, and
    in paint manufacture. Tincture of cannabis was used in a majority of tonics and
    patent (over-the-counter) medicines in the 1800’s through the early 1900’s, to
    relieve headaches, muscle aches, and pain. In the year 1935, over 116 million
    pounds of hemp seed were used for paint or varnish, and in 1938, hemp
    production was poised to become a billion dollar renewable energy crop.
    Now that was a scheme to scam Americans out of one of nature’s most sustainable, beneficial and
    renewable resource, cannabis hemp.

  22. Absolutely. I agree completely. The courts are there in part to protect the will of the people from Congress when it passes bad laws, or fails to pass necessary laws, or when the Executive Branch overreaches. And like you, I believe it will be the courts that force the other branches to reform the CSA, beginning, I hope, with Judge Mueller’s ruling next week.

    I was thinking about her opinion. I hope she addresses all three prongs of the Schedule 1 test: no accepted medical use, high potential for abuse, and no accepted safe use under physician supervision. She doesn’t have to; she could pick just one and find the test is not met, e.g., there IS accepted medical use, therefore the scheduling is unconstitutional, case dismissed. But here’s the interesting part: if she doesn’t stop there and goes on to find there is also NO high potential for abuse, and then the 9th Circuit affirms on appeal, the DEA would have to drop cannabis down to Schedule 3 if they want to get back into the cannabis-prohibition business in those 9 states, because high potential for abuse is also one of the requirements for Schedule 2!!!

  23. Fair enough. However, along similar lines I would ask this.
    Isn’t it essential that courts begin to side with state marijuana laws, eventually pressing the discussion towards how much power the federal government should possess over states?
    Like it or not, the evocation of the 10th amendment is imminent in states where medical or recreational uses of marijuana exist: legislatures owe it to their constituencies to shield them from wrongful prosecution.
    Isn’t there a case to be made for federal overreach here? Doesn’t the ball get rolling with the aforementioned presumed ruling [hopefully rulings]?

  24. Johnny green is stirring the pot here. Everybody relax. I have been following this case since its beginning and as usual the Media spins everything it gets its hands on. This case was and still is the escape hatch for the Federal Government. The Feds can save a lot of face by letting the court decide if Marijuana is legal or illegal. If the Supreme court rules unconstitutional then our current Government can blame the whole mess on past politics (the other guy), If the supreme s rule constitutional then the current Gubment will have to take steps to fulfill the wishes of the majority voter that is for the first time in history in favor of ending prohibition of Marijuana and except that they knowingly violating our moral rights, opening themselves to lawsuit. Either way Marijuana will be legal soon. This is an escape hatch and it could take some time before the case makes it to the supreme court. My guess it shortly after the 2016 elections.

  25. They do. But being 20% of Americans use Marijuana. They go after the easy charges. You would think they would be more concerned about bath salts or synthetic Marijuana or crank, and meth. What they really care about is the billion dollars annually they get from seizures of properties and cash.

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