Mikos on Marijuana and Drug Scheduling

Robert A. Mikos (Vanderbilt University - Law School) has posted Marijuana and the Tyrannies of Scheduling on SSRN. Here is the abstract:

 

The Drug Enforcement Administration (DEA) is about to reschedule marijuana under the Controlled Substances Act (CSA), marking an historic shift in federal policy toward the drug. This Essay analyzes the reasoning behind the agency’s decision and its implications for other Schedule I drugs, including promising psychedelics like psilocybin and methylenedioxymethamphetamine (MDMA). The Essay begins by highlighting a new test the agency introduced to determine whether a drug has a “currently accepted medical use” (CAMU). In the past, the DEA insisted CAMU could be demonstrated only by successfully completing rigorous scientific research demonstrating a drug is effective. But because the CSA limits the ability to conduct such research on Schedule I drugs, the agency’s CAMU test proved nearly impossible to satisfy, imposing what I call the Tyranny of Science.  In its latest marijuana rescheduling decision, however, the DEA announced that CAMU could also be demonstrated by showing there is already widespread clinical use of a drug. Because state medical marijuana programs are wildly popular, the agency was able to find that marijuana has a CAMU under the new test, even though scientific proof of its medical efficacy is still lacking. Nonetheless, I argue the new CAMU test is unlikely to facilitate rescheduling of any other drug.

In effect, the new test requires convincing popular majorities to pass state laws legalizing medical use of a drug the federal government has banned outright. Although marijuana advocates eventually convinced enough voters in enough states to satisfy this daunting test, no other Schedule I drug is likely to repeat that feat anytime soon (if ever). But the Essay proposes a way to soften the Tyrannies of Scheduling: I argue the DEA should de-emphasize CAMU in scheduling decisions. The agency has long insisted that a drug with no CAMU must be placed on Schedule I, regardless of its harms. But the agency has never offered a persuasive rationale for making CAMU paramount in scheduling decisions, and the Essay shows that the agency’s approach is contrary to the text and purposes of the CSA. De-emphasizing CAMU would reduce the distortive influence the tyrannical CAMU tests now wield over the administrative scheduling process, resulting in more rational scheduling decisions that better reflect the benefits and dangers of controlled substances, as Congress intended.