Madmen Rule You, Part 5: Adding a requirement to show medical use, notwithstanding the statute
As is obvious from the plain text of 21 USC 811(b), there is no place for an examination of medical use when the DEA is presented with a petition to reschedule a controlled substance. So how does the DEA position itself to place an insurmountable obstacle in front of rescheduling cannabis? It construes the third factor in the eight factor test, “the state of current scientific knowledge regarding the drug or other substance” to mean that it is required to see whether the drug already has a “currently accepted medical use in treatment in the United States.” Is it apparent to you that “the state of current knowledge regarding the drug or other substance” means a “currently accepted medical use in treatment in the United States? It doesn’t to me.
To the contrary, it is blindingly obvious that in construing its obligation to evaluate “the state of scientific knowledge” to mean to check to see whether is a “currently accepted medical use in treatment in the United States,” the DEA has completely reversed the rulemaking process as set forth in the CSA – because whether there is a “currently accepted medical use in treatment in the United States” should be determined in the rulemaking hearings - not as a condition to initiating the hearings. Otherwise there will never be any basis to conduct the hearing in which the existence or non-existence of “currently accepted medical use in treatment” should be determined.
In fact, it is obvious from the text of the CSA that checking whether there is a “currently accepted medical use in treatment” is only done during the course of the evidentiary hearing to be conducted by the DEA, not when the DEA decides whether or not to allow the evidentiary hearing. I’ll prove it to you.
The CSA requires that the FDA and the DEA conduct the evaluation required by the eight-factor test, none of which include, on a most basic and obvious level, any evaluation of “medical use” or “efficacy” as a treatment. However, the CSA does require that the DEA make a finding concerning “medical use in treatment” – but after the evidentiary hearing, as is stated in Section 811(a):
(a) Rules and regulations of Attorney General; hearing
The Attorney General shall apply the provisions of this subchapter to the controlled substances listed in the schedules established by section 812 of this title and to any other drug or other substance added to such schedules under this subchapter. Except as provided in subsections (d) and (e) of this section, the Attorney General may by rule -(1) add to such a schedule or transfer between such schedules any drug or other substance if he--
(A) finds that such drug or other substance has a potential for abuse, and
(B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; ….
Rules of the Attorney General under this subsection shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by [the federal Administrative Procedures Act].
It is clear from the language of the statute that one of the objects of the rulemaking to be conducted after the opportunity for a hearing – i.e. an evidentiary hearing – is to make the findings required by the CSA at Section 812(b). What appears in Section 812(b) of the CSA? The criteria for scheduling a substance: (a) potential for abuse, (b) accepted medical use in treatment and (c) safety. That’s right – accepted medical use in treatment shows up as one of the elements which the DEA must determine after an evidentiary hearing, not before at the stage when someone petitions for the DEA to conduct that hearing.
To summarize: it is clear from the text of the CSA that the DEA has no business testing for the existence of a currently medical use of cannabis before it conducts an evidentiary hearing. The only matters for the DEA to consider relate to safety and abuse potential. The only time at which the CSA requires that the DEA evaluate whether there is a currently accepted medical use in treatment is after the DEA grants the rulemaking petition and conducts the evidentiary hearing.