When the U.S. Supreme Court last year took up a case challenging a legal doctrine that requires courts to largely defer to regulators’ rulemaking decisions, some cannabis industry stakeholders believed a decision in favor of the plaintiffs would be helpful to legalization.
But in the days after justices of the nation’s highest court struck down the precedent known as the Chevron Deference, attorneys who spoke to NY Cannabis Insider about the decision said it’s more likely the ruling will stymie federal rescheduling and legalization.
“It really all comes down to the judge,” said Hinman Straub attorney Matt Leonardo. “Your opinion on whether it means something good for rescheduling or bad for rescheduling really depends on what your view of the federal judiciary is.”
Ten days ago, Supreme Court justices ruled in favor of plaintiffs in a case called Lober Bright Enterprises V. Raimondo, a lawsuit filed by commercial fishers challenging a National Marine Fisheries Service rule requiring them to host and pay for monitors on their fishing vessels. The lawsuit challenged the Chevron Deference, a legal doctrine established in 1984, which states that courts will defer to regulatory agencies in rulemaking when there is ambiguity in the law.
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As the case made its way through courts, some cannabis advocates believed a ruling favoring plaintiffs would make it easier to achieve legalization through the courts by suing the Drug Enforcement Administration.
The logic went: the DEA makes many subjective rulings – often at odds with science – regarding the legal status of controlled substances, therefore a ruling that removes judicial deference toward DEA rulemaking would make the agency’s decisions easier to challenge.
But some attorneys say that the Controlled Substances Act, which created the DEA, is not vague enough to merit challenges that could meaningfully improve chances of successful court challenges against marijuana prohibition.
Leonardo said he believes the Supreme Court’s decision in Loper should create a path to such legal challenges, but that today’s federal judiciary makes that almost impossible, as high court judges have proven willing to ignore precedent to make decisions that line up with conservative politics.
In recent years, the conservative-dominated Supreme Court has taken drastic action to ignore the legal doctrine of “stare decisis,” which says judges must generally make rulings based on precedents set in other cases. Stare decisis is a major reason why the Supreme Court’s decision in Roe v. Wade protected abortion rights for decades.
With their ruling in the Loper case, a majority of justices threw out the precedent set by the 1984 Chevron decision, similar to how they did with a decision that struck down Roe v. Wade in 2022.
Collectively, Leonardo said, this boils down to what is essentially a rogue federal judiciary willing to make its own rules to broaden its authority and impose conservative principles on the American public.
“People don’t think of the judiciary as a political branch, but they are,” Leonardo said, “and they are abrogating more power to themselves at the expense of the executive” branch.
So, even though the Loper decision theoretically makes it easier to win legal challenges against rules and regulations promulgated by the DEA, conservative judges are increasingly willing to ignore precedent for political ends – which means judges will likely find a way to rule against plaintiffs challenging the DEA, regardless of how strong their case is, Leonardo said.
In fact, there already exists somewhat of a pipeline for far-right groups to fast-track cases for which they seek a precedent-shifting decision, Leonardo said. There are multiple recent examples of the extremely conservative Fifth Circuit appeals court in Texas. Judges on this panel haven’t been shy about imposing nationwide injunctions in cases involving issues like immigration and abortion.
“There has been a trend for litigants who want to achieve a particular purpose to cite their cases in the Fifth Circuit … because they have ideologically sympathetic judges in the Fifth Circuit who are willing to bend over backwards to reach an outcome that they desire,” Leonardo said.
Matthew Schweber, a cannabis-focused attorney at Feuerstein Kulick LLP, agrees that the Supreme Court’s Loper decision is another signal of conservative judges’ willingness to ignore precedent, which could open the door to litigants seeking to reverse rulings that favor legalization.
“It can motivate litigants now to challenge administrative agencies with a great deal more zeal than they may have in the past,” Schweber said. That’s because of “the general disregard that this Supreme Court has shown toward the principle of stare decisis … even when they’ve paid lip service to it.”
Additionally, Schweber said, there’s good reason to believe that even though the Loper decision curtails the power of regulatory agencies in some situations, it likely won’t curtail the DEA’s rules regarding cannabis and other substances. Even before the Loper ruling, judges only applied the Chevron Deference to cases in which the law is ambiguous, Schweber said. But the CSA is a pretty comprehensive statute with little ambiguity.
“This [ruling] has no bearing whatsoever on the Controlled Substances Act, or rescheduling of cannabis,” Schweber said. “The statute isn’t even ambiguous. There’s no gaps, there’s no ambiguity in the Controlled Substances Act.”
The Loper Ruling maintains judicial deference to regulatory agencies when it comes to fact-finding and policymaking. The DEA already has a clear fact-finding and policymaking process to reclassify controlled substances – the same process they’re currently using to move cannabis from Schedule 1 to Schedule 3, Schweber said.
Schweber added that because of the increased threat of lawsuits challenging rescheduling, the agency could take much longer than they otherwise would have. DEA employees are more likely to take their time to make sure decisions revolving around rescheduling are bulletproof to legal challenges, Schweber said. Then there could be further delays if judges grant injunctions in such lawsuits.
At the end of the day, the Loper decision likely could make it more difficult to achieve federal legalization through the courts, which is why advocates and congresspeople should go about it the old fashioned way, Leonardo said – by passing laws.
“The easiest way to reschedule is for Congress to do its duty and act on rescheduling,” Leonardo said. “We are where we are because of a complete abdication of responsibility by the legislative branch of the government.”
