`
`No. 20-148
`
`IN THE
`Supreme Court of the United States
`
`MARVIN WASHINGTON, ET AL.,
`
`Petitioners,
`
`v.
`
`WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
`Respondents.
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Second Circuit
`
`BRIEF OF AMERICANS FOR SAFE ACCESS
`AS AMICUS CURIAE
`IN SUPPORT OF PETITIONERS
`
`ANDREW KIM
`GOODWIN PROCTER LLP
`1900 N Street, N.W.
`Washington, DC 20036
`
`
`BRETT M. SCHUMAN
` Counsel of Record
`JENNIFER B. FISHER
`NICHOLAS M. COSTANZA
`GOODWIN PROCTER LLP
`3 Embarcadero Center
`San Francisco, CA 94111
`BSchuman@
`goodwinlaw.com
`(415) 733-6000
`
`Counsel for Amicus Curiae
`
`
`September 4, 2020
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`PAGE
`INTEREST OF THE AMICUS CURIAE .................... 1
`SUMMARY OF ARGUMENT ..................................... 2
`ARGUMENT ............................................................... 5
`This Court should grant certiorari to
`A.
`address the growing split over whether
`a plaintiff must exhaust a constitutional
`challenge to the enforcement of a
`statute before the very agency
`responsible for enforcing that statute. ............. 5
`This Court should grant certiorari to
`reaffirm the fundamental liberty
`interest in the choice of medical
`treatment, and the right to use
`cannabis as part of that treatment. ............... 11
`The millions of America who depend on
`medical cannabis should not be forced to
`wait decades for DEA to languish over a
`due-process claim that it should not be
`adjudicating in the first place. ....................... 18
`CONCLUSION .......................................................... 24
`
`
`B.
`
`C.
`
`
`
`i
`
`
`
`
`
`ii
`
`
`
`
`TABLE OF AUTHORITIES
`
` PAGE(S)
`
`CASES
`Albuquerque Pub. Sch. v. Sledge,
`No. CV 18-1029 KK/LF,
`2019 WL 3755954 (D.N.M. Aug. 8, 2019)......... 20
`Alliance for Cannabis Therapeutics v. DEA,
`15 F.3d 1131 (D.C. Cir. 1994) ....................... 8, 22
`Alliance for Cannabis Therapeutics v. DEA,
`930 F.2d 936 (D.C. Cir. 1991) ........................... 22
`Ams. for Safe Access v. DEA,
`706 F.3d 438 (D.C. Cir. 2013) ............................. 8
`Colon-Calderon v. DEA,
`218 F. App’x 1 (D.C. Cir. 2007) ........................... 6
`Cooper v. Aaron,
`358 U.S. 1 (1958) ................................................. 5
`
`Cruzan ex rel. Cruzan v.
`Director, Mo. Dep’t of Health,
`497 U.S. 261 (1990) ............................................. 8
`Gallegos-Hernandez v. United States,
`688 F.3d 190 (5th Cir. 2012) ........................... 6, 8
`
`
`
`
`
`iii
`
`
`
`Gonzales v. Raich,
`545 U.S. 1 (2005) ............................................... 13
`Hansen v. Dep’t of Homeland Sec.,
`911 F.3d 1362 (Fed. Cir. 2018) ......................... 19
`Home Care Providers, Inc. v. Hemmelgarn,
`861 F.3d 615 (7th Cir. 2017) ............................... 6
`Lawrence v. Texas,
`539 U.S. 558 (2003) ............................................. 8
`Leary v. United States,
`395 U.S. 6 (1969) ............................................... 12
`
`Marine Mammal Conservancy, Inc. v.
`Dep’t of Agric.,
`134 F.3d 409 (D.C. Cir. 1998) ............................. 6
`McCarthy v. Madigan,
`503 U.S. 140 (1992) ............................................. 5
`McKart v. United States,
`395 U.S. 185 (1969) ............................................. 5
`NORML v. DEA,
`559 F.2d 735 (D.C. Cir. 1977) ............................. 8
`Planned Parenthood of Se. Pa. v. Casey,
`505 U.S. 833 (1992) ........................................... 23
`
`Forest City Residential Mgmt. ex rel.
`Plymouth Square Ltd. Dividend Housing
`Ass’n v. Beasley,
`71 F. Supp. 3d 715 (E.D. Mich. 2014)............... 19
`
`
`
`
`
`iv
`
`
`
`Raich v. Gonzales,
`500 F.3d 850 (9th Cir. 2007) ............................. 12
`Reno v. Flores,
`507 U.S. 292 (1993) ........................................... 23
`S. Ohio Coal Co. v. Donovan,
`774 F.2d 693 (6th Cir. 1985) ............................... 7
`Sanchez-Llamas v. Oregon,
`548 U.S. 331 (2006) ........................................... 10
`Sandusky v. Goetz,
`944 F.3d 1240 (10th Cir. 2019) ......................... 16
`United States v. Dohou,
`948 F.3d 621 (3d Cir. 2020) ................................ 6
`United States v. McIntosh,
`833 F.3d 1163 (9th Cir. 2016) ........................... 15
`
`United States v. Oakland
`Cannabis Buyers’ Coop.,
`532 U.S. 483 (2001) ........................................... 16
`United States v. Pisarski,
`965 F.3d 738 (9th Cir. 2020) ............................. 15
`United States v. Sineneng-Smith,
`140 S. Ct. 1575 (2020) ......................................... 7
`
`Volvo GM Heavy Truck Corp. v.
`U.S. Dep’t of Labor,
`118 F.3d 205 (4th Cir. 1997) ............................... 6
`
`
`
`
`
`v
`
`
`
`Washington v. Glucksberg,
`521 U.S. 702 (1997) ........................................... 11
`STATUTES AND REGULATIONS
`21 U.S.C. § 355(x) ................................................... 17
`21 U.S.C. § 355(b) ................................................... 17
`21 U.S.C. § 812(b)(1)(B) ......................................... 12
`Pub. L. No. 113-235, § 538,
`128 Stat. 2130, 2217 (2014) .............................. 15
`Pub. L. No. 116-6, § 537,
`133 Stat. 13, 138 (2019) .................................... 15
`34 C.F.R. § 86.100 .................................................. 21
`34 C.F.R. § 86.300 .................................................. 21
`34 C.F.R. § 86.304 .................................................. 21
`OTHER AUTHORITIES
`
`Confirmation Hearing on the Nomination of
`Hon. William Pelham Barr to be
`Attorney General of the United States:
`Hearing Before the S. Judiciary Comm.,
`S. Hrg. 116-65, 116th Cong. (2019)
`(statement of William P. Barr) ......................... 14
`Exec. Order No. 12,564,
`51 Fed. Reg. 32,889 (Sept. 15, 1986) ................ 19
`Notice of Denial of Petition,
`66 Fed. Reg. 20,038 (April 18, 2001) .................. 8
`
`
`
`
`
`vi
`
`
`
`Denial of Petition To Initiate Proceedings
`To Reschedule Marijuana,
`76 Fed. Reg. 40,552 (July 8, 2011) ..................... 8
`Denial of Petition to Initiate Proceedings to
`Reschedule Marijuana,
`81 Fed. Reg. 53,688 (Aug. 12, 2016) ................... 9
`Schedules of Controlled Substances:
`Placement in Schedule V of Certain
`FDA-Approved Drugs Containing
`Cannabidiol; Corresponding Change to
`Permit Requirements,
`83 Fed. Reg. 48,950 (Sept. 28, 2018) ................ 17
`Ams. for Safe Access,
`2019 State of the States,
`https://www.safeaccessnow.org/sos. ............. 3, 18
`Richard J. Bonnie & Charles H.
`Whitebread, The Forbidden Fruit and
`the Tree of Knowledge: An Inquiry into
`the Legal History of American Marijuana
`Prohibition, 56 Va. L. Rev. 971 (1970) ............. 12
`The Cannigma Staff, Cannabis Regulation
`Around the World (Oct. 2, 2019),
`https://cannigma.com/regulation/cannabi
`s-regulation-around-the-
`world/#censouth-america .................................. 13
`Mem. from James M. Cole, Deputy Att’y
`Gen., U.S. Dep’t of Justice, to All U.S.
`Att’ys (Aug. 29, 2013), available at
`https://www.justice.gov/iso/opa/resources
`/3052013829132756857467.pdf ........................ 14
`
`
`
`
`
`vii
`
`
`
`Disabled American Veterans, Resolution
`No. 076, Support Department of Veterans
`Affairs Research Into the Medical
`Efficacy of Cannabis for Service-
`Connected Disabled Veterans (2019-
`2020), available at https://www.dav.org/
`wp-content/uploads/ResolutionBook.pdf .......... 20
`FDA New Release: FDA Approves First
`Drug Comprised of an Active Ingredient
`Derived From Marijuana to Treat Rare,
`Severe Forms of Epilepsy
`(June 25, 2018), https://www.
`fda.gov/news-events/press-
`announcements/fda-approves-first-drug-
`comprised-active-ingredient-derived-
`marijuana-treat-rare-severe-forms .................. 16
`GlobeNewswire, GW Pharmaceuticals plc
`and Its U.S. Subsidiary Greenwich
`Biosciences, Inc. Announce That
`EPIDIOLEX® (cannabidiol) Oral
`Solution Has Been Descheduled and is
`No Longer a Controlled Substance (Apr.
`6, 2020, 9:00 ET),
`https://www.globenewswire.com/news-
`release/2020/04/06/2012160/0/en/GW-
`Pharmaceuticals-plc-and-Its-U-S-
`Subsidiary-Greenwich-Biosciences-Inc-
`Announce-That-EPIDIOLEX-
`cannabidiol-Oral-Solution-Has-Been-
`Descheduled-And-Is-No-Longer-A-
`Controlled-Substan.html .................................. 17
`
`
`
`
`
`viii
`
`
`
`Letter from Brett P. Giroir, M.D., Assistant
`Secretary for Health, to the Honorable
`Robert W. Patterson (May 16, 2018) ................ 17
`Lewis A. Grossman, Life, Liberty, [and the
`Pursuit of Happiness]:
`Medical Marijuana Regulation in
`Historical Context,
`74 Food & Drug L.J. 280 (2019) ..... 11, 12, 13, 22
`Christopher Ingraham, 92% of Patients Say
`Medical Marijuana Works, Wash. Post
`(Oct. 1, 2014, 10:33 a.m.) .................................. 18
`Marijuana Policy Project,
`Medical Marijuana Patient Numbers
`(July 6, 2020),
`https://www.mpp.org/issues/medical-
`marijuana/state-by-state-medical-
`marijuana-laws/medical-marijuana-
`patient-numbers/ ............................................... 18
`Nat’l Academy of Sciences, Eng’g, & Med.,
`The Health Effects of Cannabis and
`Cannabinoids: The Current State of
`Evidence and Recommendations for
`Research (2017) ................................................. 16
`Mem. from David W. Ogden, Deputy Att’y
`Gen., U.S. Dep’t of Justice, to Selected
`U.S. Att’ys (Oct. 19, 2009), available at
`https://www.justice.gov/sites/
`default/files/opa/legacy/2009/10/19/medic
`al-marijuana.pdf ............................................... 14
`
`
`
`
`
`ix
`
`
`
`U.S. Dep’t of Health & Human Servs., Basis
`for the Recommendation to Place
`Cannabidiol in Schedule V of the
`Controlled Substances Act ................................ 17
`U.S. Dep’t of Veterans Affairs, Veterans
`Health Administration, VHA Directive
`1315: Access to VHA Clinical Programs
`for Veterans Participating in State-
`Approved Marijuana Programs
`(Dec. 8, 2017), available at
`https://www.va.gov/vhapublications/tion.
`asp?pub_ID=5711 .............................................. 19
`
`
`
`
`
`
`
`
`
`
`
` INTEREST OF THE AMICUS CURIAE1
`Americans for Safe Access (“ASA”) is the nation’s
`largest member-based organization of patients, medical
`professionals, scientists, and concerned citizens
`working to promote safe and legal access to cannabis
`for therapeutic use and research. ASA fulfills its
`mission through legislative advocacy, education,
`grassroots activism, services provided to patients and
`their providers, and litigation. ASA has more than
`100,000 active members with chapters and affiliates in
`all 50 states and the District of Columbia.
`The Second Circuit’s decision evaded an important
`constitutional question: whether there is a substantive
`due process right to use cannabis for medical purposes,
`given that there is a consensus of at least 33 States
`(and the District of Columbia) legally permitting such
`use, and given the federal government’s increasing
`deference to state
`laws?
` Because the Drug
`Enforcement Administration (DEA) is charged with the
`administration of the Controlled Substances Act (CSA),
`which places cannabis in the most restricted category
`(Schedule I), the court of appeals determined that the
`agency should have the first opportunity to resolve
`petitioners’ claims. Worse still, the Second Circuit
`justified its exhaustion requirement by confusing
`constitutional claims (which petitioners raised) with a
`statutory re-scheduling claim (which petitioners did
`
`1 All parties have consented to the filing of this brief. Amicus
`curiae timely provided notice of intent to file this brief to all
`parties. No counsel for a party authored any part of this brief,
`and no such counsel or party made a monetary contribution
`intended to fund the preparation or submission of this brief. No
`person other than amicus curiae, its members, or its counsel made
`a monetary contribution to the brief’s preparation or submission.
`1
`
`
`
`
`
`2
`
`
`not). The latter is within DEA’s competence to
`adjudicate, the former is not.
`As one of the nation’s leading advocacy groups for
`the right to access medical cannabis, ASA has an
`interest in ensuring that petitioners’ constitutional
`claims are not lost to the abyss of agency adjudication.
`DEA has taken decades to resolve statutory issues
`relating to the scheduling of cannabis, and it has every
`incentive here to prolong
`its adjudication of
`constitutional claims that it should not be considering
`in the first place. And, in its most recent denial of a
`rescheduling request, in 2016, DEA justified that
`denial partly on the ground that its hands were tied on
`the issue because of treaty obligations. DEA has all
`but made clear that it has no interest in granting
`petitioners relief—however that relief is framed. It
`was wrong to require exhaustion of petitioners under
`those circumstances, and it was particularly wrong to
`do so by taking the unprecedented approach of
`rewriting claims.
`ASA submits this amicus brief to highlight the
`existing circuit split that has only been worsened by
`the Second Circuit’s decision, and to urge this Court to
`take up the pressing and long-overdue question of
`whether the right to medical cannabis, supported by a
`national consensus, is protected by the Due Process
`Clause.
`
`SUMMARY OF ARGUMENT
`A. This Court should grant certiorari to resolve a
`circuit split over whether a plaintiff must exhaust
`constitutional claims through the administrative
`process (for which agencies possess no expertise) before
`bringing those claims to a court. The Second Circuit
`adopted a radical new approach to that question: it
`
`
`
`
`
`3
`
`
`concluded that, if there is overlap between the
`constitutional claim and the statutory issues that the
`agency
`is charged with resolving,
`then
`the
`constitutional claim must be exhausted. That position
`upends the party presentation principle, which this
`Court recently reaffirmed, as it invites courts to
`reinvent a plaintiff’s claims without his or her input.
`B. This case also presents an opportunity for this
`Court to acknowledge under the Due Process Clause
`what much of the country has already recognized:
`there is a right to use cannabis for medical treatment.
`Cannabis has been used for medical treatment
`purposes for thousands of years. In the United States,
`there were no prohibitions on the use of medical
`cannabis from the nation’s founding until 1970, when
`the Controlled Substances Act (CSA) became law.
`Today, at least 33 states and the District of
`Columbia—covering
`76.5%
`of
`the American
`population—have returned to what had long been the
`status quo, having enacted laws allowing for the use of
`medical cannabis.2 And while the CSA’s designation of
`cannabis as a Schedule I substance remains on the
`books, both the Executive Branch and Congress have
`made clear that the CSA’s criminal prohibitions will
`not be enforced against those engaged in the
`authorized use of medical cannabis.
`
`
`2 The 76.5% figure does not include Texas and 13 other states that
`have authorized a more limited medical marijuana program. If
`these states are included in the count, the numbers are even more
`compelling: 47 states, the District of Columbia, and four territo-
`ries have authorized some form of medical marijuana. See Ams.
`for
`Safe
`Access,
`States,
`2019
`State
`of
`the
`https://www.safeaccessnow.org/sos.
`
`
`
`
`
`
`
`
`4
`C. Millions of Americans, including some of the
`petitioners here, depend on ready access to cannabis
`for lifesaving treatment. Despite the fact that the
`majority of states have authorized the medical use of
`cannabis, the CSA imposes a number of burdens that
`force those who depend on cannabis to choose between
`their quality of life or their livelihood. A person using
`cannabis for medical treatment can lose, among other
`things, her federal employment, her right to travel
`across state lines, and her federally funded housing.
`The Second Circuit’s prescription for those seeking to
`remove such burdens on their right to medical
`treatment is to go to the DEA and seek statutory re-
`scheduling. History has shown that the re-scheduling
`process will result in nothing but futility and
`frustration, as even the court of appeals recognized
`when it retained jurisdiction to guard against agency
`delay. One re-scheduling petition for cannabis took 22
`years to resolve, with the petitioners bouncing back
`and forth between agency and judicial fora. Petitioners
`here risk the same fate of agency dilatoriness; despite
`raising claims outside of the agency’s expertise, the
`Second Circuit forced them back to the agency anyway.
`Now petitioners face the real possibility that they, too,
`may have to wait years, if not decades, to have their
`claims heard by the only forum that should hear
`them—an Article III court.
`For these reasons, the Court should grant the
`petition for a writ of certiorari.
`
`
`
`
`
`5
`
` ARGUMENT
`A. This Court should grant certiorari to ad-
`dress the growing split over whether a
`plaintiff must exhaust a constitutional chal-
`lenge to the enforcement of a statute before
`the very agency responsible for enforcing
`that statute.
`“The doctrine of exhaustion of administrative reme-
`dies . . . is, like most judicial doctrines, subject to nu-
`merous exceptions.” McKart v. United States, 395 U.S.
`185, 193 (1969). One such exception arises when “an
`agency may be competent to adjudicate the issue pre-
`sented, but still lack[s] the authority to grant the type
`of relief requested.” McCarthy v. Madigan, 503 U.S.
`140, 148 (1992).
`1. For over 200 years, this Court has recognized
`that it is the federal judiciary, and not any other
`branch of government, that is “supreme in the exposi-
`tion of the law of the Constitution.” Cooper v. Aaron,
`358 U.S. 1, 18 (1958). Following this principle, it
`should be plainly obvious that, however competent an
`agency may be on matters of policy, statutory imple-
`mentation, and regulatory enforcement, an agency in
`the executive branch is not “competent to adjudicate”
`constitutional claims.
`But the courts of appeals have demonstrated that
`this corollary has been anything but plainly obvious.
`In particular, they have been split on whether to re-
`quire agency exhaustion for constitutional claims, even
`though agencies are not charged in their enabling stat-
`utes with the task of resolving such claims.
`
`
`
`
`
`
`
`
`6
`
`Some courts have correctly recognized that there is
`no point in requiring an agency to resolve a constitu-
`tional claim because (1) agencies are not accustomed to
`adjudicating constitutional issues; and (2) agencies
`have little interest in invalidating the statutory and
`regulatory schemes they are charged with administer-
`ing. See, e.g., United States v. Dohou, 948 F.3d 621,
`628-29 (3d Cir. 2020) (“We also excuse prudential ex-
`haustion when the challenged agency action presents a
`clear and unambiguous violation of statutory or consti-
`tutional
`rights.”
`(citation omitted)); Gallegos-
`Hernandez v. United States, 688 F.3d 190, 194 (5th Cir.
`2012) (holding that it is “futile” to make a constitution-
`al challenge before “those who are charged to enforce
`the regulation” being challenged).
`But other circuits require plaintiffs to raise consti-
`tutional challenges before agencies, even if the agencies
`are powerless to do anything about the challenges.
`See, e.g., Marine Mammal Conservancy, Inc. v. Dep’t of
`Agric., 134 F.3d 409, 414 (D.C. Cir. 1998) (“Exhaustion
`even of constitutional claims may promote many of the
`policies underlying the exhaustion doctrine.”); Colon-
`Calderon v. DEA, 218 F. App’x 1 (D.C. Cir. 2007); Home
`Care Providers, Inc. v. Hemmelgarn, 861 F.3d 615, 624
`(7th Cir. 2017) (requiring exhaustion for constitutional
`claims unless the constitutional challenge is “entirely
`collateral to [the] claim of entitlement, and the claim-
`ant’s interest in having the issue resolved promptly is
`so great that deference to the agency’s judgment is in-
`appropriate” (citation omitted)); Volvo GM Heavy Truck
`Corp. v. U.S. Dep’t of Labor, 118 F.3d 205, 215 (4th Cir.
`1997) (“[E]xhaustion can be useful even where a consti-
`tutional issue is presented.”). And some courts require
`exhaustion only if the agency has something meaning-
`
`
`
`
`
`
`
`
`7
`
`
`
`ful to add to the constitutional analysis, i.e., it can moot
`the constitutional claim by resolving in the plaintiff’s
`favor a separate statutory claim that is within its am-
`bit, or develop a further record that would be useful for
`adjudicating the constitutional claim. E.g., S. Ohio
`Coal Co. v. Donovan, 774 F.2d 693, 702 (6th Cir. 1985)
`(noting that exhaustion is unnecessary unless “agency
`expertise is needed to decide the legal issue involved,”
`or an “adequate factual record” needs to be “compiled”).
`2. The Second Circuit further complicated the split
`by taking a new approach to agency exhaustion: it re-
`wrote petitioners’ claims and changed them from con-
`stitutional claims outside of DEA’s expertise to a statu-
`tory one within the agency’s ambit. See Pet. App. 16a
`(summing up all claims as “marijuana should not be
`classified as a Schedule I substance under the CSA”).
`But, as this Court recently recognized in United States
`v. Sineneng-Smith, 140 S. Ct. 1575 (2020), a court must
`take issues as the parties have framed them. Id. at
`1579 (“[O]ur system is designed around the premise
`that parties represented by competent counsel know
`what is best for them, and are responsible for advanc-
`ing the facts and argument entitling them to relief.”
`(citation, internal quotation marks, and modifications
`omitted)). Petitioners presented constitutional claims
`to the district court—in assessing exhaustion, the Sec-
`ond Circuit should have examined those claims as-is,
`and not reformulate them into something else solely for
`the purpose of triggering exhaustion requirements.
`Moreover, requiring these petitioners’ claims to un-
`dergo agency exhaustion makes little sense for at least
`three reasons. First, agencies are generally not in the
`business of declaring unconstitutional the very statutes
`they are charged with enforcing (here, the CSA’s
`
`
`
`
`8
`
`
`
`Schedule I designation). See Gallegos-Hernandez, 688
`F.3d at 194 (noting that it would be “futile” to chal-
`lenge the constitutionality of an agency’s regulations
`and to seek relief “from those who are charged to en-
`force the regulation”).
`Second, the constitutional challenges do not require
`agency expertise or factfinding. To be sure, there are
`commonalities in the respective analyses to determine
`whether there is a substantive due process right to use
`cannabis for medical purposes, and the CSA’s statutory
`factors in determining whether a drug should be placed
`on Schedule I. But petitioners’ claim is not that can-
`nabis should be decriminalized. Rather, it is that the
`majority of States have already made policy determina-
`tions that Americans should have access to the safe
`and effective medical use of cannabis, and that those
`determinations now give rise to a substantive due pro-
`cess right to the use of cannabis for medical treatment.
`Courts, and not DEA, have expertise in recognizing
`such constitutional rights. E.g., Cruzan ex rel. Cruzan
`v. Director, Mo. Dep’t of Health, 497 U.S. 261, 295
`(1990); see also Lawrence v. Texas, 539 U.S. 558, 573-74
`(2003).
`Third, DEA’s position is ossified. Four decades of
`petitions to re-schedule cannabis have resulted in noth-
`ing but futility—time and time again, DEA has denied
`petitions (including by amicus ASA) despite significant
`evidence of the medical merits of cannabis. See, e.g.,
`NORML v. DEA, 559 F.2d 735, 751 (D.C. Cir. 1977);
`Alliance for Cannabis Therapeutics v. DEA, 15 F.3d
`1131 (D.C. Cir. 1994); Notice of Denial of Petition, 66
`Fed. Reg. 20,038 (April 18, 2001); Denial of Petition To
`Initiate Proceedings To Reschedule Marijuana, 76 Fed.
`Reg. 40,552 (July 8, 2011); Ams. for Safe Access v. DEA,
`
`
`
`
`9
`
`
`
`706 F.3d 438 (D.C. Cir. 2013). DEA has looked for eve-
`ry excuse in the book to avoid re-scheduling. Most re-
`cently, in August 2016, DEA denied a petition to re-
`schedule partly by invoking the United States’ treaty
`obligations under the 1961 Single Convention on Nar-
`cotic Drugs. It concluded:
`Marijuana is a drug listed in the Single
`Convention. The Single Convention uses
`the term “cannabis” to refer to marijuana.
`Thus, the DEA Administrator is obligated
`under section 811(d) to control marijuana
`in the schedule that he deems most ap-
`propriate to carry out the U.S. obligations
`under the Single Convention. It has been
`established in prior marijuana reschedul-
`ing proceedings that placement of mari-
`juana in either schedule I or schedule II
`of the CSA is “necessary as well as suffi-
`cient to satisfy our international obliga-
`tions” under the Single Convention.
`NORML v. DEA, 559 F.2d 735, 751 (D.C.
`Cir. 1977). As the United States Court of
`Appeals for the D.C. Circuit has stated,
`“several requirements imposed by the
`Single Convention would not be met if
`cannabis and cannabis resin were placed
`in CSA schedule III, IV, or V.” Id. There-
`fore, in accordance with section 811(d)(1),
`DEA must place marijuana in either
`schedule I or schedule II.
`Denial of Petition to Initiate Proceedings to Reschedule
`Marijuana, 81 Fed. Reg. 53,688, 53,688-689 (Aug. 12,
`2016). There is no reason to think that DEA’s recalci-
`trance will not extend to constitutional claims as well.
`
`
`
`
`10
`
`3. The treaty issue illustrates another problem
`with exhaustion: if the Single Convention butts up
`against constitutional claims, DEA is in no position to
`untangle itself out of the treaty to honor the Constitu-
`tion. Generally speaking, federal agencies are not in
`the business of interpreting or violating treaty obliga-
`tions, which may be implicated if DEA were to remove
`cannabis from Schedule I. Courts, not agencies, are
`equipped to handle conflicts between an agency’s or-
`ganic statute and the treaty obligations that are car-
`ried out by the statute. Cf. Sanchez-Llamas v. Oregon,
`548 U.S. 331, 334 (2006) (“If treaties are to be given ef-
`fect as federal law, determining their meaning as a
`matter of federal law is emphatically the province and
`duty of the judicial department. . . .” (citation and in-
`ternal quotation marks omitted)). The CSA fulfills the
`U.S.’s commitments under the Single Convention; if
`there is a conflict between petitioners’ due process ar-
`guments and the U.S.’s treaty obligations, as DEA has
`said there would be, only a court is equipped to resolve
`that conflict.
`4. This Court should intervene now to address the
`split in the circuits regarding the judicially created ex-
`haustion doctrine, as it applies to constitutional chal-
`lenges—made all the more confusing by the Second
`Circuit’s decision below. Litigants that appear before
`agencies prophylactically raise constitutional issues all
`the time, and several courts have properly recognized
`that agencies are ill-equipped to resolve those issues.
`Here, the court of appeals went in the opposite direc-
`tion, blessing an approach to exhaustion that rewrites
`a constitutional claim so that it sounds like a claim
`that the agency is equipped to handle. The Second Cir-
`cuit turned petitioners’ constitutional claim—i.e.,
`
`
`
`
`
`
`
`
`11
`
`
`
`whether there is a substantive due process right to use
`cannabis for medical purposes—into a question of stat-
`utory authority, i.e., whether DEA may reschedule
`medical cannabis under the CSA, so that the court
`could sweep petitioners’ claims back to DEA using the
`broom of exhaustion.
`B. This Court should grant certiorari to reaf-
`firm the fundamental liberty interest in the
`choice of medical treatment, and the right to
`use cannabis as part of that treatment.
`The Due Process Clause “specially protects those
`fundamental rights and liberties which are, objectively,
`‘deeply rooted in this Nation’s history and tradition,’ . .
`. . and ‘implicit in the concept of ordered liberty.’”
`Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)
`(quoting Moore v. City of E. Cleveland, Ohio, 431 U.S.
`494, 504 (1977); Palko v. Connecticut, 302 U.S. 319,
`325 (1937)). “Our Nation’s history, legal traditions,
`and practices thus provide the crucial ‘guideposts for
`responsible decisionmaking’ that direct and restrain
`[this Court’s] exposition of the Due Process Clause.”
`Id. at 721 (citation omitted).
`1. The history of cannabis in the United States un-
`ambiguously supports the existence of a right to use
`cannabis for medical treatment. Cannabis has been
`used for therapeutic purposes for thousands of years
`around the world. Lewis A. Grossman, Life, Liberty,
`[and the Pursuit of Happiness]: Medical Marijuana
`Regulation in Historical Context, 74 Food & Drug L.J.
`280, 287-88 (2019). In the United States, cannabis was
`recognized as a form of medical treatment for the first
`time in the mid-to-late 1800s, used for pain manage-
`
`
`
`
`
`12
`
`
`
`ment, muscle disorders, and a whole host of other con-
`ditions. Id. at 288.
`In the early 1900s, several states had quietly pro-
`hibited the use of cannabis without undertaking “any
`empirical or scientific study of the effects of the drug,”
`relying instead on “lurid and often unfounded accounts
`of marijuana’s dangers.” Richard J. Bonnie & Charles
`H. Whitebread, The Forbidden Fruit and the Tree of
`Knowledge: An Inquiry into the Legal History of Amer-
`ican Marijuana Prohibition, 56 Va. L. Rev. 971, 1021-
`22 (1970). But even in these states, cannabis use was
`allowed for “medical channels.” Id. at 1027; see also
`Raich v. Gonzales, 500 F.3d 850, 865 (9th Cir. 2007)
`(“There is considerable evidence that efforts to regulate
`marijuana use in the early-twentieth century targeted
`recreational use, but permitted medical use.”). Still,
`the medical use of cannabis waned in the first half of
`the 20th century; no state law prohibited it, but canna-
`bis-as-medicine fell out of popularity due to efforts to
`“tax and regulate marijuana out of existence.” Gross-
`man, supra, at p. 290. By 1965, all states had crimi-
`nalized the possession of cannabis, but almost every
`state had an exception for “persons for whom the
`d[rug] had been prescribed or to whom it had been giv-
`en by an authorized medical person.” Leary v. United
`States, 395 U.S. 6, 16-17 (1969).
`Congress’s decision in 1970 to place cannabis on
`Schedule I—a classification for drugs that have “no
`currently accepted medical use in treatment,” 21
`U.S.C. § 812(b)(1)(B)—departed sharply from historical
`medical and legal practice. By the 1980s, in the wake
`of the CSA, states had abandoned their longstanding
`provisions allowing for the medical use of cannabis.
`Grossman, supra, p. 297 (noting that, by the end of the
`
`
`
`
`13
`
`
`
`1980s, states “revok[ed] their medical marijuana stat-
`utes or let[] them expire.”).
`But the states began to change course in 1996.
`That year, California enacted Proposition 215, other-
`wise known as the Compassionate Use Act of 1996,
`which ensured that “‘seriously ill’ residents of the State
`[of California] [had] access to marijuana for medical
`purposes.” Gonzales v. Raich, 545 U.S. 1, 5-6 (2005).
`Two years later, five other states—Alaska, Arizona,
`Nevada, Oregon, and Washington—enacted medical
`cannabis laws. Grossman, supra, p. 308.
`2. The current legal landscape with respect to med-
`ical cannabis is far different than what it was when the
`CSA was adopted in 1970 or even in the 1980s. In the
`two-and-a-half decades since Proposition 215, the ma-
`jority of states have restored the legal right to use can-
`nabis for medical purposes. Today, 33 states and the
`District of Columbia authorize the use of medical can-
`nabis, and over 76% of Americans have state-legal ac-
`cess to it. The change in attitudes—and the growing
`acknowledgement that cannabis has therapeutic val-
`ue—is part of a growing global trend. Canada, Mexico,
`Germany, France, Greece, Portugal, South Korea, Aus-
`tralia, South Africa, Argentina, Chile, and 29 other
`countries allow for medical access to cannabis. See The
`Cannigma Staff, Cannabis Regulation Around the
`World (Oct. 2, 2019), https://cannigma.com/regulation
`/cannabis-regulation-around-the-world/#central-south-
`america.
`Although cannabis remains on Schedule I, the fed-
`eral government has increasingly recognized and ac-
`commodated its sale and use for medical purposes in
`several ways.
`
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`
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`14
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`Federal
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