Judge Merrick Garland’s Treatment of Cannabis

With Judge Merrick Garland’s attorney general confirmation hearing scheduled for next week, individuals and companies involved in the cannabis industry are maintaining a wait-and-see approach with respect to Judge Garland’s policies and treatment of cannabis.

Judge Garland’s public views on cannabis are relatively unknown, which makes sense given that he’s been a judge on the D.C. Circuit Court of Appeals for the last twenty-three years. But cannabis insiders have their eyes on a 2013 decision from the D.C. Circuit Court of Appeals (Americans for Safe Access v. Drug Enforcement Administration)—in which a three-member panel of the Court (including Garland) deferred to the Drug Enforcement Administration’s decision to continue to classify marijuana as a Schedule I drug under federal law—for clues.

The petitioners in Americans for Safe Access argued that, given the medical benefits of marijuana, the DEA (the agency charged with classifying narcotics) acted arbitrarily and capriciously when it denied petitioners’ request to compel the DEA to reschedule marijuana. The government rejoined, contending that it would not reclassify marijuana because “there was no available evidence of adequate, well-controlled studies demonstrating marijuana’s safety and effectiveness as a medicine and no consensus among experts as to these issues.” Ultimately, the panel sided with the government, concluding that the Court had to defer to the DEA’s interpretation of its own regulations and holding that substantial evidence existed to support the DEA’s determination that no “adequate and well-controlled studies proving efficacy” existed.

Although he did not author the opinion, at oral argument, Judge Garland pressed the petitioners, inquiring whether the Court had to “defer” to the DEA’s interpretation under Chevron U.S.A., Inc. v. Natual Resources Defense Council, Inc., 467 U.S. 837 (1984). This short line of questioning by Judge Garland foreshadowed the panel’s decision and leads some to believe he’ll simply defer to the DEA when it comes to cannabis policy. But it remains unclear how Judge Garland will grapple with cannabis once he’s the attorney general.

In any event, most cannabis advocates hope that Judge Garland is less hostile towards cannabis than his predecessors, Bill Barr and Jeff Sessions, particularly Sessions who authored a 2018 memorandum rescinding the 2013 memorandum promulgated by Deputy Attorney General James Cole—which curtailed cannabis prosecutions by announcing “certain enforcement priorities that are particularly important to the government.”

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