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A Federal Judge Could Rule In Favor Of Rescheduling Marijuana

schedule i 1 one marijuana


Sometimes when I’m with close friends, I ask them if they want to ‘smoke some Schedule I.’ They are always caught off guard by that question. Am I asking them to consume something that has a high chance of addiction, and contains zero medical value? After they realize I’m talking about marijuana, they always give a chuckle, and ask why I call it that. I call it that to highlight how stupid marijuana’s federal classification is, in a snarky way.

Like I always say, the fact that marijuana is a Schedule I substance is a slap in the face to logic and science (among other things). A federal judge in California has heard arguments recently for and against rescheduling marijuana. Jeremy Daw (The Leaf Online) recently wrote an article for Alternet, in which he makes some very interesting observations in the case that may suggest Judge Kimberly Mueller is leaning towards ruling in rescheduling’s favor. The main argument against the pro-rescheduling side is that there is no legal standing, which means the case would be lost on a technicality. With that in mind, below is an excerpt of Mr. Daw’s article:

Based on Mueller’s comments from the bench, combined with the pattern of delays in constructing her legal theory of the case, it appears unlikely that this judge will dispose of this question on purely procedural grounds. On the final day of oral argument in the case, for example, Judge Mueller posed a hypothetical to the attorneys in the case. “Suppose I reach a decision on the merits,” she said, “using either the rational basis standard or what one judge has called ‘rational basis with bite.'” It’s one of the only clues of her intent from an otherwise poker-faced judge.

The repeated delays in the written argument phase — three now — also favor a decision on the merits. While written opinions on standing can be as arcane as any other topic of law (if not more so), the area of law applying standing to drug law cases is relatively well-developed compared to the novel — indeed, historic — question posed by the merits: is keeping cannabis in Schedule I so out of step with reality as to be unconstitutional?

Finally, judicial economy must be considered. The dockets of federal judges are famously crowded; it makes little sense to devote five days of extremely valuable court time to establishing evidence relevant to the merits of the case if one didn’t intend to decide the case on the merits.

All of the points that Jeremy Daw makes are valid. Will Justice Mueller rule in favor of the status quo due to a technicality, even after she dedicated so much time towards hearing the case? You never know how the case is going to be decided until the final ruling has been handed down, but this is all very encouraging. Either way the case is decided, it’s almost a guarantee that the losing side is going to file an appeal. If you aren’t following this court case, you should be, as it’s extremely important.


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Johnny Green


  1. ” In this case, FED govt has to come up with some mechanism who can grow – something similar to canada mmar license”

    Completely unnecessary. There are no restrictions — Federal or otherwise — on citizens growing medicinal herbs for themselves, and none are needed nor invited.

  2. I can think of only 2 outcomes.

    1. Judge will rule schedule 1 is unconstitutional and people have right to grow medicinal herbs at home (canadian supreme court did exactly the same 10 years back). In this case, FED govt has to come up with some mechanism who can grow – something similar to canada mmar license

    2. Judge will say “court can not do anything with regards to scheduling, though sympathize with defendants”. Nothing happens then.

    However, based on time/effort spent on this case, I would think judge will go with #1. Otherwise, it would be meaningless to have hearing in the first place.

  3. Stephen Weber on

    Won’t matter. No matter which side she rules for or against, the case will be appealed, and her delays indicate she is preparing her reasoning to withstand a reversal on appeal. Eventually the burden of proof will win out, I predict.

  4. Unless she gets a scary midnight visit from the DEA pressuring her to judge against .

  5. If she rules against cannabis being schedule 1, and the feds appeal, is there any chance of expediting appeals, on the grounds that lives are at stake?
    Maybe they will review their hideous decision in Gonzalez vs. Raich. No right to use cannabis even if it is necessary to save a life? How can such degenerate ways be the law of the land?

  6. Precedent can be overturned. When the Supremes invalidated ‘sodomy’ laws about 10 years ago, they overturned their own relatively recent ruling on the subject. Courts, like politicians, can ‘evolve’.

  7. I’ve been surprised by the number of folks that post about re-scheduling since it won’t change anything of consequence.
    You are absolutely correct in saying it should be removed from the CSA. PERIOD.

  8. Hopefully they’re REMOVE it entirely from the CSA.

    If they merely re-schedule it to sch. 2 or 3, it will then fall under the total control of the FDA / DEA with all the myriad Federal Regulations, Restrictions and Controls that are found on any other Pharmaceutical drug.

    That would eliminate the entire Amateur “medical” marijuana industry nationwide, as only FDA approved drugs for specific medical indications are allowed, and no company or person is going to fund millions of $$ in specific clinical trials which take years to complete if they can’t be guaranteed a patent on the meds to recover their costs. Furthermore, only DEA licensed BigPharma facilities may produce and distribute drugs, and only DEA licensed Pharmacists may dispense those controlled substances, and only after a DEA licensed Physician has written a valid prescription for the limited and specific medical indications that drug has been FDA approved for.

    Recreational Pot would be DEAD — since NO SCHEDULED Drug is approved for recreational use. Not one.

    DE-scheduling is the only solution.

    RE-scheduling will mean DECADES more of Prohibition and extreme Government Regulation … backed by Criminal Penalties as usual.


  9. Gonzalez v. Raich, where U.S. Supreme Court Justice John Stevens opened the door to a scientific review of treating marijuana as a Schedule I drug:

    We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I … Respondents’ submission, if accepted, would place all homegrown medical substances beyond the reach of Congress’ regulatory jurisdiction.

    Govt attorneys failed miserably in the court. Judge will rule in favor of defendants and schedule 1 unconstitutional. Eric holder will remove marijuna from schedules altogether before he leaves the office.

  10. The judge took the case based on supreme court foot note below . So, the ulitmate result should be people can grow marijuana at home. DEA can not make it schedule II. It will be just like alcohol (atleast I hope). Can DEA randomly say , you can not grow carrot at home or brew beer at home ?

    Gonzalez v. Raich, where U.S. Supreme Court Justice John Stevens opened the door to a scientific review of treating marijuana as a Schedule I drug:

    We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I … Respondents’ submission, if accepted, would place all homegrown medical substances beyond the reach of Congress’ regulatory jurisdiction.

  11. PatientPatient on

    More than one legal scholar disagrees with you, Helen:

    What will happen after?

    If my prediction is correct and Judge Mueller rules for the defense on the merits, the prosecutors can be expected to immediately move for an appeal and a temporary stay on her ruling until the matter can be heard by the 9th Circuit. Such a move could easily delay any ruling from taking effect until next year.

    In the unlikely event that such a motion isn’t granted, then the administrator of the DEA can be expected to immediately schedule cannabis in Schedule II — which happens to be one of the moves contemplated by the CARERS bill just filed in the US Senate.

    Thus, a favorable ruling by Judge Mueller will not by itself end the federal war on marijuana. Cocaine is listed in Schedule II, but any would-be Tony Montana in the US still has to worry about DEA raids.

    Nevertheless, it would still be a huge win. Just as Judge Walker’s Prop 8 decision had a massive effect on the national politics of gay marriage, so too could a favorable ruling by Judge Mueller finally begin to budge an intransigent Congress into finally respecting the will of the people who voted them in office. Passing the CARERS bill would be a cinch.


  12. Latest “official” ruling is scheduled for April 15 – unless there’s a third postponement …

  13. Judge can only make a ruling that Schedule 1 status of marijuana is unconstitutional in regards to the people involved in the case. It will likely be appealed and a request for a stay on the decision will be filed. Ultimately, higher and higher courts may get involved, to include SCOTUS. In my opinion, this may be the best, fastest way to get marijuana de- or re-scheduled.

  14. Which she is to a certain extent. It’s called PRECEDENCE … Refer to the gay marriage case in CA. Yes, it only applied to that one couple, but the PRECEDENCE set the stage for statewide, and ultimately nation-wide reform laws.

  15. Stephen Weber on

    Judge Kimberly Mueller, the federal magistrate who made history by granting defense requests for a five-day hearing on the constitutionality of the continued inclusion of cannabis in Schedule I of the Controlled Substances Act, was originally scheduled to meet with the parties of US v Schweder et al for a status hearing this week, but has delayed that meeting until April 15th.

  16. Even if Judge Mueller were to rule scheduling of Marijuana unconstitutional, it WILL be appealed all the way to SCOTUS! That’s gonna take 2 years at least for SCOTUS to get the case then 10 months to write the decisions. I know the guy involved in this case and those were the words right out of his mouth. If Obama does it, the next president can reschedule it with no recourse. The ruling was actually expected 2 weeks ago. But she’s talking her time writing her ruling b/c we believe she’s ruling in our favor and wants to have all the I dotted & t’s crossed

  17. Incorrect. The court ruling will only effect the 3 defendants for whom the Appeal was submited. If the judge rules in favor they will receive a more lienant sentence. It has absolutely no bearing on the rest of the country’s marijuana convictions. It could pressure the members of Congress to act. However a Republican controled caucuses will most certainly would not bring it to a vote.

  18. Silly Rabbit on

    I beleive you are incorrect in your statement ….. The Courts can rule on it or they would not be there …..

    Amazing thing about this case is the Court elected to hear the case!

  19. Silly Rabbit on

    Correct in the easy prey and to top it off ….. Weed users usually don’t put up much of a struggle say compared to a meth addict, Silly Rabbits!

  20. Larry Smalley on

    We the educated people of the world know that “CANNABIS” (a.k.a. Hemp a.k.a. Marijuana) can help HEAL our SICK, PLANET, ECONOMY! It all starts as soon as the SEED is PLANTED. If anyone tries to tell us DIFFERENTLY then THEY ARE EITHER LYING or IGNORANT! We all hope the judge is as educated with the truth as we are!

  21. AethiopicPecan on

    When the Marihuana Stamp Act was called for a vote on the floor
    of the United States House of Representatives, a Representative from New York
    asked what the Bill was about. The Speaker of the House of Representatives, Sam
    Rayburn, replied, “I don’t know. It has something to do with a thing called
    marihuana. I think it’s a narcotic of some kind.”
    When asked if the American Medical Association supported the
    bill, a committee member falsely replied that it did. After this brief exchange
    the Bill was passed.
    In actuality, the American Medical Association representative Dr. William C.
    Woodward, strongly opposed the Marihuana Stamp Act of 1937, when he testified
    at a Congressional hearing: “We cannot understand yet, Mr. Chairman, why
    this bill should have been prepared in secret for 2 years without any
    intimation, even, to the profession, that it was being prepared.” Cannabis
    hemp (marihuana) seed oil was widely used as a lubricant, water repellant, and
    in paint manufacture. Tincture of cannabis was used in a majority of tonics and
    patent (over-the-counter) medicines in the 1800’s through the early 1900’s, to
    relieve headaches, muscle aches, and pain. In the year 1935, over 116 million
    pounds of hemp seed were used for paint or varnish, and in 1938, hemp
    production was poised to become a billion dollar renewable energy crop.
    Now that was a scheme to scam Americans out of one of nature’s most sustainable, beneficial and
    renewable resource, cannabis hemp.

  22. Absolutely. I agree completely. The courts are there in part to protect the will of the people from Congress when it passes bad laws, or fails to pass necessary laws, or when the Executive Branch overreaches. And like you, I believe it will be the courts that force the other branches to reform the CSA, beginning, I hope, with Judge Mueller’s ruling next week.

    I was thinking about her opinion. I hope she addresses all three prongs of the Schedule 1 test: no accepted medical use, high potential for abuse, and no accepted safe use under physician supervision. She doesn’t have to; she could pick just one and find the test is not met, e.g., there IS accepted medical use, therefore the scheduling is unconstitutional, case dismissed. But here’s the interesting part: if she doesn’t stop there and goes on to find there is also NO high potential for abuse, and then the 9th Circuit affirms on appeal, the DEA would have to drop cannabis down to Schedule 3 if they want to get back into the cannabis-prohibition business in those 9 states, because high potential for abuse is also one of the requirements for Schedule 2!!!

  23. Fair enough. However, along similar lines I would ask this.
    Isn’t it essential that courts begin to side with state marijuana laws, eventually pressing the discussion towards how much power the federal government should possess over states?
    Like it or not, the evocation of the 10th amendment is imminent in states where medical or recreational uses of marijuana exist: legislatures owe it to their constituencies to shield them from wrongful prosecution.
    Isn’t there a case to be made for federal overreach here? Doesn’t the ball get rolling with the aforementioned presumed ruling [hopefully rulings]?

  24. Johnny green is stirring the pot here. Everybody relax. I have been following this case since its beginning and as usual the Media spins everything it gets its hands on. This case was and still is the escape hatch for the Federal Government. The Feds can save a lot of face by letting the court decide if Marijuana is legal or illegal. If the Supreme court rules unconstitutional then our current Government can blame the whole mess on past politics (the other guy), If the supreme s rule constitutional then the current Gubment will have to take steps to fulfill the wishes of the majority voter that is for the first time in history in favor of ending prohibition of Marijuana and except that they knowingly violating our moral rights, opening themselves to lawsuit. Either way Marijuana will be legal soon. This is an escape hatch and it could take some time before the case makes it to the supreme court. My guess it shortly after the 2016 elections.

  25. They do. But being 20% of Americans use Marijuana. They go after the easy charges. You would think they would be more concerned about bath salts or synthetic Marijuana or crank, and meth. What they really care about is the billion dollars annually they get from seizures of properties and cash.

  26. Danny Johnson on

    what does a HERB have to do with ANY drugs ? DRUGS are Toxic ! .. HERBS are not .. FACT !

  27. Mr Mojo Risin on

    You would think they’d realize they’d have plenty of other “drugs” to imprison people for & ruin their lives.

  28. If that happens, DEA will likely drop cannabis down to Schedule Two immediately, and cultivation, sale, and possession will be just as illegal federally as it is now under Schedule 1. So you can see that the courts really have no power to de-schedule or re-schedule.

  29. assuming that supreme court will rule schedule 1 unconstitutional, What does it mean ? whole classification is void – same as de-scheduling.

  30. Please let me clarify. First, regarding semantics, this discussion was initially about what affect Judge Mueller’s decision will have. Some suggested that her ruling would have, as you put it, the power to alter the course of convictions, which it will not.

    You are right, and I explained this too, that the 9th Circuit (in Western states) and the SCOTUS could indeed render the CSA temporarily meaningless with regard to cannabis by finding the classification unconstitutional, but – if you want to leave semantics aside – what would happen then? Any such finding would be immediately followed by DEA or Congress re-scheduling it to Schedule 2, making cultivation, sale, and possession every bit as illegal as it is now in Schedule 1. So, both on the books and in effect, the courts cannot de-schedule or re-schedule or otherwise legalize cannabis for anyone but the defendants in the particular case at issue.

  31. Since we are speaking literally, you have a point, but the power to alter the course of conviction makes the written law moot.
    What good is a law on the books that can’t be tried? It is fine we are arguing semantics, and you are right by the letter, but does it really matter?
    Laws on the books are only as good as the society that follows them. Once enforcers can no longer place penalties on people a law just becomes empty words, right?

  32. Again, Judge Mueller’s decision will affect nothing and no one other than the defendants in this case. The law will not become invalid. Cannabis will remain a Schedule 1 substance and even her own colleagues in the Eastern District of California will not be required to follow her ruling.

  33. No, her ruling will have absolutely no precedential effect under the doctrine of stare decisis.

  34. You are confusing the power to declare a law unconstitutional and the power to re-write the CSA by re-scheduling or de-scheduling.

  35. AJ, I read up on Judicial Review in law school and in my years of legal practice, so let me help you understand this. The SC can declare a law unconstitutional, but that’s not the same as re-scheduling or de-scheduling. It just means that a prosecutor will not be able to get a cannabis conviction under the CSA. Only the Executive or Legislative branches can re-schedule or de-schedule cannabis. If Judge Mueller deems it unconstitutional, it will affect no one other the defendants in that case – absolutely nothing else will change. If, on appeal, the 9th Circuit deems it unconstitutional, prosecutors will be unable to get a cannabis conviction under the CSA in the nine Western states covered by the 9th Circuit, but nothing will change in the other 41 states. At that point, the DEA or Congress might decide to re-schedule or de-schedule. If on further appeal the SC deems it unconstitutional, prosecutors won’t be able to get a conviction under the CSA in any state, and the DEA or Congress will definitely re-schedule or de-schedule if they haven’t already. But the Supreme Court has zero power to re-write the CSA.

  36. Read up on Judicial Review please. It doesn’t matter what the law says because the Supreme Court (ultimately the court system) gets to choose if that law stays a law or not.

  37. I apologize I mis spoke this, it’s not under her, but the courts in the 9th district. Any defense can use her ruling as a defense, until it’s ruled on by a higher court.

  38. As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional. Many of those where portions of a law. They can and have the power, it’s granted to them by the us constitution.

  39. That’s not exactly accurate. If she finds it unconstitutional, it will only affect the courts under her district. If it’s appealed and goes to Supreme Court, and they rule it as not unconstitutional, things go back to status quo. If Supreme Court rules it unconstitutional, then the DEA’s power to prosecute marijuana goes away, as all federal courts will be required to follow the Supreme Courts previous ruling. The DEA was created by congress to be controlled under the president. The courts ruling on it, is the balance of powers that our nations creators placed to prevent a congress and president from becoming too powerful. Specifically thou, the CSA states that rescheduling can be done by the DEA, AG, President, congress, and or the Supreme Court.

  40. Robert Eckerson on

    DEA has the authority to do it; that means Obama, no matter how he tries to squirm out of it.

  41. The DEA do not care about any legalization laws the only thing they care about is their own personal lives and jobs and as long as they can arrest a person for Marijuana or other drugs they will. Agents can make over $92,000 in just 4 years why would they want to give that up plus federal medicine insurance and pensions. They do not care about Amercan people only their cash crop. Even if Marijuana was rescheduleed they will do everything they can to keep their jobs.

  42. “Congress is STILL or fastest option for us to DE-schedule marijuana.”

    So funny – so sad – so true.

  43. ĐΣFΣCŦΣĐ on

    DEA is unconstitutional, how can they sustain laws? Congress works for the people and the majority says end it. in my mind the law has already changed.

  44. Which sadly is exactly why legalization doesn’t happen. If the Federal or State governments had an interest in benefiting the people Prohibition would clearly no longer be an issue. This is about creating a virtual slave class in our country. This cannabis prohibition is abhorrent to say the least.

  45. PatientPatient on

    You’re correct that the judge cannot reschedule or deschedule cannabis. What the judge can do, however, is rule that the law classifying cannabis as a Schedule I drug is unconstitutional & thereby, invalid. Thus, cannabis would immediately be effectively descheduled until the DEA Administrator deems it a Schedule II. (Of course, the ruling will immediately be appealed, so…)


  46. The judge cannot reschedule cannabis or remove it from Schedule 1. If she rules that the Schedule 1 classification is unconstitutional and the gov’t appeals, and then the Court of Appeals affirms her ruling, cannabis would STILL be a Schedule 1 substance until the DEA or Congress acts to change it.

  47. The DOJ prosecutors in Northern California do not believe that they can be impeded by the recent laws barring them from interfering with state-legal cannabis operations. http://www.huffingtonpost.com/2015/04/03/doj-medical-marijuana_n_6997016.html.
    The will have the same attitude towards rescheduling. The will deny that the Federal courts have jurisdiction over the scheduling and that only Congress may reschedule. And if Congress reschedules, I am not sure it will make a difference, as cocaine and amphetamine are both Schedule 2 drugs. Only a direct order from the Attorney General or the POTUS will stop the prosecutions, most likely through the replacement of the head of the DEA (Michele Leonhart) and the Federal prosecutor Melinda Haag. We have seen that Eric Holder silenced Leonhart from her outrageous criticism of the President’s cannabis policies, but they would not go so far as firing her. Obama is one of the most cautious politicians I have seen in my long life and he did not exercise his prerogative to replace the US Attorneys when he was elected as most presidents have done, even though some were clear political enemies. I am sure that there will be no rebuke of Haag.
    Enforcement of the Rohrbacher amendment will boil down to the Federal judiciary not being will to hear these cases or rule against further prosecutions (although this was not the case with the so called Kettle Falls Five case in Eastern Washington). In which case, the DOJ will spend years appealing to the SCOTUS.

  48. PhDScientist on

    For the good of America’s Cancer patients, I hope the judge makes the right decision and removes Marijuana from Schedule 1.

  49. I know the Plaintiff in this case. I was with him all last week lobbying Congress for the CARERS Act. I guarantee you they feel pretty encouraged by the length of time she’s taken to write her opinion as well.

    However, even if she rules in his favor, that’s not going to be the end of Marijuana in Schedule I territory. Her ruling WILL be appealed by the DOJ. It will take a couple more years at least to get TO the SCOTUS. I know it sounds counter intuitive but Congress is STILL or fastest option for us to DE-schedule marijuana. Even as slow as the wheels of Congress grind!

    Our BEST opportunity is for the CARERS Act to be passed by Congress. There’s only ONE way that happens! That’s if YOU call and WRITE your Federal Representatives and give them your support on the Bill. E-mails are best b/c they can print those out and use as evidence of constituent support for the Bill.

    Don’t think “I’ll let someone else call or write. I’m too busy! Plus, my Representatives don’t listen anyway.” Only YOU can change that.

    The CARERS Act was sent to the Judiciary Committee b/c it deals with the CSA. That COULD be good for us if people will participate. There’s ONE Senator holding this Bill up right now. That Senator is Chuck Grassley (R-IA) who chairs the Senate Judiciary Committee. Grassley’s been in the Senate since Washington was President! He’s very anti marijuana b/c his BABY is”Medicare Part D”. So he’s all about Big Pharma and has so far REFUSED to even give the CARERS Act a HEARING in his committee. Virtually KILLING the bipartisan Bill.

    So please WRITE & call your Federal Representatives and tell them to support the CARERS Act! That’s the ONLY way this happens! Be CORDIAL and KNOW what the Bill says before you act.

  50. Stephen Weber on

    Prohibition vs. legalization:
    Prohibition kills and harms people deliberately;
    legalization saves and enhances lives.
    Prohibition is expensive in dollars, lives and property lost, spent on an unworkable law;
    legalization reduces costs while providing more jobs, income, taxes, salable products.
    Legalization is the smart thing to do; (politicians: Take Note!)
    fear of changing a status quo which has enriched greedy profiteers, both licit and illicit, motivate prohibition.
    Legislating morality is a conflict of church and state.

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