Two Rochester, New York, marijuana entrepreneurs, “the Green Brothers,” asked the Circuit to strike down marijuana’s classification as a Schedule I drug as an unconstitutional violation of their due process and equal protection rights and, on that basis, dismiss the narcotics charges against them. Green, 2022 WL 3903654 at **1-2.
“They argued that marijuana’s scheduling has no ‘rational basis’ because it does not meet the statutory criteria for Schedule I classification; that is, the CSA requires that a substance have no currently accepted medical use in treatment in the United States to fall under Schedule I, see 21 U.S.C. § 812(b)(1), and marijuana does have accepted medical uses.” Id. at *2. The Circuit rejects this argument.
I. Background facts
“Alexander Green obtained hundreds of kilograms of marijuana from California which he shipped to his brother, Charles Green, in New York State” for distribution “in the Rochester, New York area.” Id. at *1. In 2014, “a Western District of New York grand jury returned a two-count indictment against the Green Brothers charging them with conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).” Id.
The Green Brothers filed a joint motion to dismiss the narcotics conspiracy count arguing that the classification of marijuana as a Schedule I controlled substance in the CSA lacks a rational basis — because marijuana doesn’t meet the CSA’s scheduling criteria — and thus violates their due process and equal protection rights.
The district court ruled against the Appellants, concluding that rational basis review “asks not whether it is reasonable to conclude that the specific criteria in the statute have been met, but, rather, whether there is any conceivable basis that might support the classification.” Id. at *2. And according to the district court, “there are numerous conceivable public health and safety grounds” for placing marijuana on Schedule I. Id.
The Green Brothers subsequently pleaded guilty “to a two-count Superseding Information that charged them with a marijuana distribution conspiracy and conspiracy to commit money laundering” but “reserved the right to appeal the denial of their motion to dismiss the marijuana conspiracy count, which they now do.” Id. at *3.
II. Second Circuit holds that Congress’s classification of marijuana as a Schedule I drug meets the “rational basis test”
The Second Circuit concluded that the Appellants were asking it to “restrict [its] rational basis review to statutory criteria.” Id. at *4. It held, however, that the CSA’s scheduling criteria are irrelevant under the rational basis test, which asks only whether Congress could have “any conceivable” basis for including marijuana in the strictest schedule. And “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Id., at *7 (emphasis added) (internal quotations and citation omitted). Congress’s choice of a particular classification, the Court stated, “may be based on rational speculation unsupported by evidence or empirical data.” Id.
Moreover, the “burden” is on the challengers “to negative every conceivable basis which might support” the classification. Green, 2022 WL 3903654 at *7 (emphasis in original) (internal quotations and citation omitted). Thus, “[i]t is not enough for those attacking the rationality of the legislative classification to argue that Congress’s stated reasons do not support the decision it made[.]” Id. (emphasis in original).
Also, on rational-basis review, “a classification in a statute … bear[s] a strong presumption of validity.” Id. Under this “extremely deferential standard[,]” if a classification’s rationality is “at least debatable,” the Government prevails. Id.
The Circuit concludes there are “conceivable” public health and safety grounds justifying Congress’s and the DEA’s regulation of marijuana as Schedule I drug. Id. at **7-8 (quoting Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed.Reg. 53,767, 53,770, 53,774-75, 53-783-74 (Aug. 12, 2016)).
But the Circuit notes that the Appellants didn’t make a case for a standard of scrutiny stricter than rational basis. The Appellants, the Circuit notes, made “no effort to rebut the district court’s conclusions that (1) the scheduling of marijuana implicates no fundamental right… and (2) they failed to show that marijuana’s inclusion on Schedule I was motivated by discriminatory intent toward a suspect class[.]” Id. at *6 n. 8. So, the argument for a stricter standard of scrutiny isn’t foreclosed. (There’s evidence of racial/national-origin biases in the enactment of anti-marijuana laws. See books and articles on Harry Anslinger, head of the Bureau of Narcotics in the 1930’s).
The Circuit holds that the district court had jurisdiction to consider the constitutional challenge. The issue arose because “[t]he CSA establishes a process for seeking reconsideration of a controlled substance’s scheduling based on the CSA’s statutory factors, and that process requires individuals to file an administrative petition, the denial of which is directly reviewable in the courts of appeals.” Id. at *4 (citing 21 U.S.C. §§ 811(a), 877) . The district court expressed concern that the Appellants were “really challenging the administrative determination not to reclassify” marijuana, which a district court doesn’t have jurisdiction to address. Id.
The Circuit concluded that the district court had jurisdiction because the Appellants “asserted a constitutional defense, however mistaken[.]” The Circuit thus rejected the Government’s suggestion that the Appellants couldn’t “raise their constitutional defense without first exhausting available administrative remedies” provided by the CSA. Id. at **4-5.
Although the Appellants could present a “convincing” administrative petition to reschedule marijuana, the current scheduling isn’t unconstitutional “unless there is no conceivable basis for placing marijuana on the strictest schedule.” Id. at *7. The Circuit notes that the “Green Brothers convincingly argue that it is irrational for the government to maintain that marijuana has no accepted medical use, and we agree with the district court that—if this were an appeal from an agency’s denial of a petition to reschedule marijuana—it would therefore be difficult for us to conclude otherwise.” Id. at *7.
But to establish their equal protection and due process defenses, the Appellants “must do more than show that the legislature’s stated assumptions are irrational—[they] must discredit any conceivable basis which could be advanced to support the challenged provision, regardless of whether that basis has a foundation in the record, or actually motivated the legislature.” Id. at *7 (alterations and emphasis in original).