In the seminal legal case challenging the US government’s mis-scheduling of cannabis under the 1970 Controlled Substances Act (CSA), NORML vs. DEA, at a crucial junction in 1988, which would have readily ended most administrative law challenges, NORML, et al (Alliance for Cannabis Therapeutics, Drug Policy Foundation, etc…) won the re-scheduling argument before Drug Enforcement Administration Law Judge Francis Young.
This past week the Federal Communications Commission ruled in the infamous Janet Jackson ‘wardrobe malfunction’ that the $550,000 fine levied by the FCC against CBS was excessive and “arbitrary and capricious”.
Hmmm…“arbitrary and capricious”…where have I heard that phrase before regarding the actions of over-reaching government agencies?
On September 8, 1988, after 16 years of legal challenges from NORML and company, Judge Young ruled:
“…the marijuana plant considered as a whole has currently accepted medical use in treatment in the United States, that there is no lack of accepted safety for use of it under medical supervision and that it may lawfully be transferred from Schedule I to Schedule II.”
“The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”
The DEA ignored their own administrative law judge’s ruling, appealed the decision to the US Appeals Court in Washington, DC, and ultimately won their only phase of the case—the final phase of the case—in 1994 in a 2-1 decision, which in effect permits the DEA to in fact be ‘arbitrary and capricious’, and I’d throw in malevolent for good measure, in respects to cannabis.
Thanks to Ellen Komp at veryimportantpotheads.com for alerting folks to this interesting juxtaposition of the recent FCC decision and the DEA’s long tortured position on medicinal cannabis.
Lastly, Ellen points out that the ‘Lectric Law Library’ provides the definition of ‘arbitrary and capricious’ to mean: Absence of a rational connection between the facts found and the choice made.