Reports of Chevron-related deaths linked to marijuana reclassification are greatly exaggerated (Comment)

“I remain confident that Annex III will be implemented and that it will survive judicial review under Loper Bright just as surely as it did under Chevron.”

By Shane Pennington, Porter, Wright, Morris and Arthur LLP

A few days ago, in a case called Loper Bright Enterprises v. Raimondo, the Supreme Court struck down the Chevron deference doctrine—the instruction from a 1984 ruling that courts defer to the reasonable interpretation of federal agencies when interpreting ambiguous laws administered by those agencies. Since then, more and more people have emerged predicting that Chevron’s demise will also mean the end of the effort to move cannabis to Schedule III.

These views may be hot, but they are also, as I will explain, completely wrong. But first, a warning: Most people find the subject of administrative law extremely difficult and boring. As Justice Scalia put it in the preface to a speech he gave on the subject at Duke Law School decades ago:

“Administrative law is not for wimps – so sit back, hold on to your chair and sit through a pretty boring lecture. There will be a quiz afterwards.”

Given all the bold claims that Loper Bright will stop the rescheduling, you’d think one of the “experts” who support this view would explain why they believe it. But it’s not surprising that no one has. When you look at the details, it’s clear that the fate of Schedule III is in no way tied to that of Chevron.

Although Chevron was a landmark Supreme Court decision, it addressed only certain issues in federal court challenges to administrative agency decisions—namely, those that hinged on a federal agency’s interpretation of ambiguous statutory language. In this narrow class of cases, Chevron required courts to defer to certain reasonable agency interpretations. Loper Bright rejects this approach and requires judges to exercise their own independent judgment when addressing questions of statutory interpretation in the agency context.

The Court made clear, however, that while an agency’s interpretation may not be binding on federal judges, it is still important. This is particularly true in cases where, for example, Congress has expressly granted the agency the authority to give meaning to a specific, broad term and/or where the agency’s interpretation is long-standing and consistently in effect. In these circumstances—and others that the Court discussed at length—the agency’s interpretation still deserves great deference.

Two key questions of statutory interpretation are relevant in the context of the reclassification of cannabis: the validity of (1) the Department of Health and Human Services’ (HHS) interpretation of the term “currently accepted medical use in treatment in the United States” and (2) the Drug Enforcement Administration’s (DEA) and DOJ’s interpretation of the treaty provisions of the Act and the Single Convention to permit the transfer of substances subject to the Single Convention to Schedules III, IV, or V.

If Chevron’s demise will affect the trial, it will be because it affects one or both of these questions. However, as I will explain, Loper Bright does not change the analysis on any of these questions.

Let’s start with the HHS’s interpretation of the term “currently accepted medical use.” In a 2005 case called Gonzales v. Oregon, the Supreme Court emphasized that Congress had expressly given HHS special authority to interpret that term. According to Loper Bright, that means that even after Chevron, HHS’s views on the issue of “currently accepted medical use” will continue to command considerable deference from a reviewing court. Perhaps more importantly, however, the DOJ’s Office of Legal Counsel has also weighed in on the issue, affirming the general viability of HHS’s interpretation and instructing the DEA to give it “considerable deference.” The OLC’s instructions are binding on the DEA.

Therefore, even without Chevron, the DEA will be required to give significant weight to the HHS view. Given all of this, Loper Bright simply does not add up on the “currently accepted medical use” issue.

As for the contract provision, courts have repeatedly held that when considering contract compliance issues, courts must give significant deference to the views of the executive branch for reasons entirely independent of Chevron. This contract-specific doctrine will continue to apply even after Chevron, meaning that courts will give at least as much deference to the thorough analysis of the contract issue by the Department of Justice and the OLC as they would have if Chevron were still in effect.

Finally, in the cases I have recently litigated against the DEA, the government has often not even attempted to invoke the Chevron rule.

Over the years, courts, including the U.S. Supreme Court, have continued to erode Chevron’s rulings and create more and more exceptions to its general rule. Many of these exceptions clearly concerned the DEA’s interpretations of the CSA’s rescheduling provisions. In short, even though the Court only finally overturned Chevron’s ruling a few days ago, this was a long, long time coming.

Agencies like the DEA had already gotten the message. As a result, they have relied on Chevron less and less over time, thereby reducing its influence on issues such as those at play in the cannabis reclassification process. For the reasons I have explained here, Chevron’s influence on these issues, whatever influence it may have had, would not have changed the reclassification analysis in the slightest.

The ongoing administrative process to reclassify cannabis is historic both for its importance to the public and for the extraordinary thoroughness of the federal government’s interagency efforts to get the process right. No other classification process in U.S. history has been so carefully considered and procedurally completed at such an early stage.

More importantly, the Federal Government’s conclusions and proposals on the matter to date are unassailable. I therefore remain confident that Annex III will be implemented and that it will survive judicial review under Loper Bright just as surely as it did under Chevron.

Shane Pennington is a partner in the Washington office of Porter, Wright, Morris and Arthur LLP. He specializes in federal administrative law and focuses his practice on resolving regulatory issues at the agency level and in federal courts across the country.

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