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.
The latest delay represents the continuance of a pattern. Previously Judge Mueller agreed to a defense request for extended written arguments on the case, and now this is the second time she has delayed a hearing on her own motion pending her ruling on the question.
Obviously, she needs more time. But what can the delay mean for the fate of the defendants accused of trafficking in a Schedule I drug? While the shoals of predicting the actions of federal judges are littered with the hulls of many a journalist’s career (remember the ObamaCare decision?), nevertheless I feel sufficiently bold on this question to float out some educated guesses:
She will rule on the merits.
In their final written arguments, prosecutors pressed for an essentially procedural decision which would have eliminated the question on the basis of the esoteric doctrine of standing. At the time, I thought that the standing argument was the strongest one prosecutors had, mainly by virtue of the fact that arguing the case on the merits was so difficult for them — who could persuasively argue, in the weight of all the accumulated evidence, that cannabis actually belongs in Schedule I, meaning that it has no recognized medical value and cannot be safely administered even under a doctor’s supervision? The standing argument was much stronger, given that it allowed the US Attorneys to sidestep this issue.
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.
She’s expecting an appeal.
When another federal judge in California, Vaughn Walker, ruled the state’s newly-passed Proposition 8 unconstitutional — thereby opening the door for gay marriage throughout the state — he knew that he was tackling a number of controversial issues, from the legal definition of marriage to principles of judicial activism. An appeal to the 9th Circuit was all but assured; therefore Judge Walker wrote an extensive 136-page opinion which exhaustively covered every conceivable point of fact and law. The effect was favorable, from Judge Walker’s point of view: the 9th Circuit took up the full case without remand or procedural delay, finding his tightly-argued opinion credible. Eventually the Supreme Court of the United States gave their own stamp of approval, allowing the 9th Circuit decision to stand without modification. Home run.
I am by no means the first commentator to compare the national issues of medical marijuana and gay marriage. Both have proven remarkable exceptions to the political impasses which have plagued the national scene for nearly a decade; in the case of gay marriage, when elected representatives moved too slowly to respect rapidly shifting public opinion, the judicial bench led the nation into reform.
Repeated delays in crafting her ruling therefore probably indicate an expectation on Judge Mueller’s part to have her decision subjected to the scrutiny of the 9th Circuit — and possibly the US Supreme Court as well. And that *probably* means…
She will find Schedule I unconstitutional.
An appeal is more likely to come from the US Attorney than from the defense in this case. While defense attorneys Zenia Gilg and Heather Burke are certainly capable of tackling a long game through the federal court system, the cost-benefit analysis of appeal favors the prosecution, as Judge Mueller well knows. Whereas the considerable cost of an appeal would have to be financed privately for the defense, the federal Department of Justice has a practically unlimited bank account to draw against (and no — the Rohrabacher-Farr Amendment to the 2015 spending bill does not affect the government’s prosecution budget in this case even one whit). Therefore, prosecutors have a powerful advantage against the accused in the appeals phase; they can grossly outspend them.
But there’s an even more compelling reason to expect a ruling for the defense from Judge Mueller: the federal judiciary, after all, is sensitive to the political winds of public opinion. Chief Justice John Roberts may have famously analogized his job to an umpire “call[ing] balls and strikes,” but legal historians know differently. Judge Walker, for one example, did not decide to overturn a gay marriage ban in a vacuum; rather, with an impeccable sense of political timing, he issued his ruling right at the moment when public opinion was shifting decisively toward allowing gay marriages to go forward. As a result, he was able to influence the national conversation even as he responded to it.
An even more salient example can be found at the dawn of the federal drug war, around a century ago. The 1914 Harrison Act is often remembered as the federal law which first criminalized drugs like heroin and cocaine (though not cannabis), but in reality it didn’t happen exactly that way. In fact, the Harrison Act resembled many of the medical marijuana statutes which have been passed in the last two decades, in that it required that heroin and cocaine could only be dispensed with a prescription and provided other limits on their distribution. As late as 1916, the US Supreme Court enforced this interpretation of the Harrison Act, unequivocally ruling that medical heroin and cocaine were still allowed with a doctor’s prescription — as noted by David Musto in his outstanding drug policy history The American Disease. But then, only three years later the Court did a complete about face, ruling in US v Doremus et al (1919) that the Harrison Act required doctors to wean their patients off such drugs, even if doing so would cause immense suffering for the patient. What had happened to completely reverse Court jurisprudence in only three short years? The answer, according to Musto, was a rapid shift in public opinion.
That is precisely the situation faced by Judge Walker in 2010 on the issue of gay marriage, and faced now by Judge Mueller on the question of cannabis policy. While well-respected polls now show that a majority of Americans favor the legalization of cannabis for all adult uses, the demand for medical marijuana reform is even starker, with up to 80% of US voters demanding that US policy recognize the “drug” as what it really is: a medicine.
A ruling for the defense on this motion would be in step with 80% of Americans; while her decision will make no statement about which of the other four schedules cannabis should belong to, it will unequivocally state that Schedule I is wrong. Few Americans indeed would disagree with that.
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.
Jeremy Daw is the editor of TheLeafOnline.com and Cannabis Now Magazine, and the author of Weed the People: From Founding Fiber to Forbidden Fruit (2012).
By Jeremy Daw - Alternet/March 23, 2015
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