Is The US Government Arbitrary and Capricious When It Comes To Pot As Compared To TV Standards? You Have To Ask?

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 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.

0 thoughts

  1. “Marijuana,in it’s natural form is one of the safest theraputically active substances known to man.By any measure of rational analysis,marijuana can be safely used under a supervised routine of medical care’
    -Judge Francis Young
    These words should be plastered all over the news everytime McCain says it has no medical value!

  2. Democrats are socialist, Republicans are Fascist. Obama or McCain it doesn’t matter neither will end prohibition both believe the State knows best and that people are incapable of making their own decisions or at least they can make better ones than we can.
    Every two years democrats & republican con us into thinking they’re not really the same party don’t fall for it. The Corporations and banks that own the press own them.
    Go to the libertarian party’s web site and read their platform they are the only ones a pot smokers should be giving their vote to, they understand smoking pot is your right as an American.

  3. True… Concerning the comment by leaving florida soon, I honestly believe what he is saying is correct. A true marijuana activist could not vote for any party other than Libertarian. The libertarian party is the ONLY party that publicly and blatantly states that ALL men should have the right to do with their bodies what they will and no government should prohibit it. We’re dealing with a strict issue of civil liberties. Until we get it in our heads that neither republican or democrat will allow us our basic constitutional rights, we will likely never win this war.

  4. You know this movement moves so slow its painful. its time we take this back to the courts and get another vote!!! And lets present them with all the facts that we have cause its there.

  5. Leaving florida…
    I agree that Libertarians are the only party to support legalization,I was a Ron Paul supporter until he dropped out,I do not trust Bob Barr to be true to his word.We can wait 100 years for a Libertarian to be elected or we can force our public servants to actually serve and not dictate.Obama does not have my vote yet but seriously…who do you think would be more realistic out of the two? Obama has pledged to end federal raids on medical marijuana users and caregivers…now go to youtube and search McCain medical marijuana…the guy is out of his mind and bases his opinion on the “fact” that marijuana has no medical value…exactly what Judge Young refuted so many years ago.

  6. By supporting the candidates that publicly support our values with out reservation or condition, we we do force politicians to serve us. Even if our candidate doesn’t win by supporting him/her any how we are giving voice to our demands. If every pot smoker in the country all voted for the candidate which said they would end the war on drugs that candidate would take at least 20% of the national vote. You can bet in the next election one of the mainstream candidates would find ending prohibition to be a good thing to campaign on.
    When you listen to the republican and democratic candidates you get one saying he’ll ignore law other saying he doesn’t see medical value, we can pretend there is actually a difference in those positions but their basically the same.
    To be fair I don’t have a say in it anyhow I’m facing a trafficking charge, I’ll likely be spending most the next presidents first term in prison at the very least I’m sure I won’t be voting in the next election.
    I wanted to say I agree with James sending this through the courts again is a good idea.

  7. The libertarians are NOT the only party proposing drug law reform. Check out Cindy Mckinney and the Greens! Half of what the libertarians want is scary,Governments have an obligation to succor the least fortunate of it’s citizens (not the most fortunate)and the Libertarians would destroy the safety net for the poor and disabled (not that it isn’t full o holes as it is!)

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