DEA in Violation of Federal Scheduling Law

I figured I would post this here so that IC folks can know about this...


Drug Law Blog: DEA Accepts Petition To Consider Removing Marijuana From Schedule I

I think it's important to get clarification, although I really think the law is clear on this.
If you look at the two cases everyone cites, Gonzales v. Raich (2005), and United States v. Oakland Cannabis Buyers Cooperative (2001), the Supreme Court seems to be saying that Congress put marijuana into Schedule 1 and it can't be removed because Congress put it there. That argument is nonsense and could not possibly be what the Supreme Court intended to say.
No one would suggest that marijuana cannot be rescheduled. In fact, several marijuana rescheduling petitions have been filed over the past 38 years since the Controlled Substances Act was enacted.
The DEA has just accepted my petition to reschedule marijuana. If Congress had locked marijuana into Schedule I, the DEA would not have just now accepted my petition to reschedule it. It's obvious that marijuana can be rescheduled.
If you look at 21 U.S.C. 812(c), it says “Initial schedules of controlled substances.”
Then it goes on to require the amendment of the schedules: 21 U.S.C. 811(a)(1) (“transfer between such schedules”); 21 U.S.C. 811(b) (“remove a drug or other substance entirely from the schedules”).
It's obvious that Congress didn't intend to reject rescheduling of marijuana simply because Congress initially put marijuana into Schedule I.
So, the question is then: what triggers the rescheduling. In 1991, the U.S. Court of Appeals in Alliance for Cannabis Therapeutics v. DEA, answered that question. The court said there is no federal definition of accepted medical use, and that in the absence of such a defition, the court defers to the DEA's opinion.
In Gonzales v. Oregon (2006), the Supreme Court explained why there is no federal defintion of accepted medical use, saying that Congress never intended to occupy the field of medicine and the states determine accepted medical use. So, there actually is a federal definition of accepted medical use - whatever the states say it is.
In 1991, there was no accepted medical use of marijuana, because the states did not start accepting medical use of marijuana by state statutes until 1996 (California and Arizona).
So, today, there are 12 states that have accepted the medical use of marijuana. These laws are binding on the federal government and the DEA has no discretion in the matter. The DEA's opinion isn't relevant any more.


I guess I should answer your question. Both state (Iowa) and federal law say marijuana has no accepted medical use in treatment in the United States. Although Iowa has the power to say marijuana has no accepted medical use in treatment in Iowa, it cannot speak for the other states. As explained previously, the federal government has no power to say marijuana has no accepted medical use in treatment in the United States. Twelve states say it does have accepted medical use in treatment and that means "in the United States" as explained by the U.S. Court of Appeals for the First Circuit in 1987 in Grinspoon v. DEA.


Iowans for Medical Marijuana is part of a coalition of groups that filed a rescheduling (in 2002) which is still pending with the DEA: Marijuana Research: The Members of the Coalition for Rescheduling Cannabis
My current petition is different. My current petition is actually just a notice to let the DEA know they are in violation of federal law. There's nothing for them to do but obey federal law and remove marijuana from Schedule I now that it no longer fits the definition of a Schedule I substance. Congress gave the power to determine accepted medical practice to the states (see 21 U.S.C. 903) and not to the DEA. 21 U.S.C. 903 says clearly that Congress did not intent to occupy the field of medicine, and that's how the U.S. Supreme Court interpreted it in 2006 in Gonzales v. Oregon, 546 U.S. 243 (2006). My current petition is purely a matter of law and fact. The law says the stated determine accepted medical use under the federal Controlled Substances Act, 21 U.S.C. 801 et seq., and the fact is that twelve states have determined that marijuana has accepted medical use. The DEA is in violation of federal law for maintaining marijuana in a schedule that says it has no accepted medical use in the United States. My petition merely gives them notice that they are in violation of federal law. The next step is federal court.

Apparently a notice has been served to the DEA to cease and desist.

On August 11, 2008 the DEA was served Notice to Cease and Desist enforcement of fraudulent federal marijuana regulations within 30 days or further action will be taken.

I have the links to the articles, but not sure on the guidelines here for posting them.

DEA ->

p.s. I am not the one who is bringing this to court. Just passing along the information.

This looks interesting. Anyone think this has legs?

After reading the petition, it is pretty clear that the DEA is in violation. It will be very interesting to see what becomes of this.

Basically what I gather from it is that at the time (Before Prop 215) there was no evidence to support a reschedule even though several attempts had been made.

Since there was no state approved Medical marijuana, congress deferred to the DEA for scheduling recommendations. Now, there is proof that marijuana has medicinal benefits both from the volume of states implementing MMJ and the fact that the government itself took out a patent on Cannabinoids.

" The Dept. Of Health and Human Services actually holds a patent (#6.630.507) on the use of cannabinoids for the prevention and treatment of a wide variety of diseases including stroke, trauma, auto-immune disorders, Parkinson's, Alzheimer's and HIV dementia"

The decision of rescheduling as indicated by U.S. Court of Appeals for the First Circuit in 1987 in Grinspoon v. DEA. should then lie with the state. The fact that there is a patent for cannabinoids should at the very least require a reschedule from I to II.


Neither the DEA nor Congress are experts in the field of medicine and therefore should not have the sole authority to override medical research and medical doctor recommendations. That is why there is a process for rescheduling...in the event that more research and information is obtained to overturn preconceived notions about a substance.

As it stands, the DEA has 30 days to comply. I for one will be keeping my eye on this. As far as I can tell, I don't really see them getting around this.

Awsome post man... You should post the link up.....

Pretty interesting stuff....

30 days to comply then it goes to what, the supreme court? That will take a few years but I'll take it! It's nice to have some hope.

Post links to the articles. Pot relate articles are always appreciated.

rock on to the truely hard workers out there fighting for the cause. keeps us updated.

Drug Law Blog DEA Accepts Petition <- article Coverage

Iowans for Medical Marijuana - group who is initiating this <- more specifically Carl Olsen


Link to Petition That was Filed <- Very Good READ!!!

melvin2 said:

30 days to comply then it goes to what, the supreme court? That will take a few years but I'll take it! It's nice to have some hope.

Post links to the articles. Pot relate articles are always appreciated.

Click to expand...

The re-schedule was suppose to happen in 1996 when California passed prop. 215. I don't think it will take years for this to go into effect. Federal Injunctions happen relatively quickly.

this is some great reading.

I pray that this has legs

If this triggers a order to stop enforcing to the DEA, then it seems that all federal marijuana cases would be put on hold until the final outcome.

It seems that it would lead to a reversal of all federal convictions in CA since 1996.

Carl's stuff is difficult to follow, sometimes. But usually some pretty good stuff.

I can see this one clicking into place.

thirty days. What date would that hit?

I saw a date of 7/22 on the blog for a date that the paperwork was accepted by the DEA.

That would put it at Thursday, 8/21.

I hope he has a boatload of lawyers just as soon as that day hits.

Just found an earlier posting dated 7/4/2008

The thirty days are past. Is anything going on now?

Edit .. sorry that was for the petition. A cease and desist order was handed to the DEA on 8/11.

New deadline would be 9/10.

lol, the DEA does not accept state voters opinion on medicine.
They look at the AMA, etc and unfortunately these groups hold that whole smoke cannabis has no medical value, primarily because of the route of administration. They feel smoking ANY drug, whether it be cannabis or lipitrol (if that were possible) is not acceptable because of the risk of lung damage.
I could go on and on and explain why smoking a drug is much safer than oral ingestion due to titration reducing possible overdose. That's where a petition would actually have a chance.
Why, because the same thing was done for marinol. Moved from sched 1 to sched II all becuase the route of administration went from smoking to oral. Uh, the drug remained the same. THC is THC is THC.

Date: Thursday, August 7, 2008, 11:44 AM

http://www.iowamedicalmarijuana.org/petitions/dea.aspx
Please include my plea for financial assistance.
Here's a break down of my costs:
$100 to open a bank account (you don't need to include this)
$350 - filing fee for U.S. District Court
$450 - filing fee for U.S. Court of Appeals
$300 - filing fee for U.S. Supreme Court
$200 - filing fee for Rehearing in U.S. Supreme Court
$2,000 - cost for printing Petition for Writ of Certiorari for U.S. Supreme Court
$2,000 - cost for printing Opening Brief for U.S. Supreme Court
$2,000 - cost for printing Reply Brief for U.S. Supreme Court
$2,000 - cost for printing Petition for Rehearing for U.S. Supreme Court

It can be very hard to win the game when your opponent writes all the rules.

Thanks everyone for the links.

Tanuvan, thanks for the post, but I hope the guy who is petitioning is a lot more thorough than you quote. I was looking at doing something myself like this and have begun looking at some aspects. The US patent filing does NOT support MMJ claims as if you actually read it, they are talking about some of the non-euphoric compounds and that part of the argument will probably be shot down.

Also, are you aware of the data quality act lawsuit filed by the ASA? ... along similar lines, arguing by the Data Quality Act of 2000 the govt can no longer claim that MJ has no health benefits.

inflorescence said:

lol, the DEA does not accept state voters opinion on medicine.

Click to expand...

LOL ... as usual totally missing the point and simply wrong. Of course the DEA does not accept states' views of MMJ, that's the whole point of the suit. Duh. It's to show by law they should.

inflorescence said:

They look at the AMA, etc and unfortunately these groups hold that whole smoke cannabis has no medical value, primarily because of the route of administration. They feel smoking ANY drug, whether it be cannabis or lipitrol (if that were possible) is not acceptable because of the risk of lung damage.

Click to expand...

You say the AMA and those groups etc ..... Wrong. Who are 'those groups?' The AMA is the largest medical pro org. but the second largest, the American College of Physicians, just voted about 6 months ago to ease restrictions on mj and recommended further study of it's medical props, inhaled or otherwise. And the AMA itself has a motion on calendar for its upcoming meeting to do the same thing.

I agree with coolx here. The patent thing is just icing on the cake, and not really required at all. If MJ is accepted as a medicine by a state, then the DEA's opinion no longer matters.

"It is established federal law that the states, and not the federal
government, determine accepted medical practice. Gonzales v. Oregon,
546 U.S. 243 (2006); 21 U.S.C. § 903. Twelve states have determined that
marijuana has accepted medical use. Rescheduling of marijuana should
have been automatically triggered in 1996 when California enacted the first
state law accepting the medical use of marijuana."

Also, as everyone knows, MMJ does not have to be inhaled. So that should not be an issue as far as its classification goes.

The petition is far more thorough than the brief synopsis that I posted. That is why I linked it. Carl sites at least 4 cases, as well as other case law and the Code of Federal Regulations.

It would seem that their own laws will be their undoing. Nevertheless, what this does show is that people are taking the issue of MMJ very seriously.

I see something like this going through before the other decrim bills pass.

As an aside, If it was rescheduled to level II it would still have been illegal for people to sell and posses without a prescription. Same as Tylenol 3..etc. So not sure about the reversal of convictions post-96.

Definitely something to think about though.

^^ Yeah, I read through all Carl Olsen's emails, petition and supporting docs. Very thorough, and I didn't find mention of the US patent (as you say, possible icing but that's about it). Looks very promising indeed. Eagerly awaiting how the DEA is going to get around this!