In a Findlaw column today, I lay out the case for ending DEA’s war on cannabis sativa L., the genus and species that makes pot and “industrial hemp” alike. One of the issues in the background of the column, but which I thought others might weigh in on here, is the relevance of agency rules that have been invalidated for procedural error.
Because of a statutory exemption woven into US drug laws long ago, hemp stalks, sterile seeds, and other products of industrial hemp are excepted from the definition of "marijuana." Eventually, synthetic production of THC (the active ingredient in pot) was possible and Congress amended the drug statutes to prohibit THC expressly, but it left the prohibition of marijuana in place, including the hemp exemption.
Recently, fearing who knows what, DEA took the position that the later amendment also banned all of the cannabis plant, since THC is present throughout. DEA originally issued an “interpretive rule,” followed immediately in the Federal Register by a proposed legislative rule that it finalized, declaring that all of the cannabis plant is a Schedule 1 drug. Both were invalidated by the Ninth Circuit, the first for being a violation of the Administrative Procedure Act Section 553, the second for being a “scheduling action” without the requisite trial-type hearing. And DEA never followed up with another rulemaking.
The result is that only the enabling statutes, along with DEA’s “considered” and highly publicized judgment on their interpretation, remain in force on the question. The courts that have reached the issue have split and another lawsuit is just under way in North Dakota.
My question to the blog is this: should DEA’s original reaction—that it must issue a rule with the force of law on the point to solidify everyone's rights and duties—be held against it in a subsequent proceeding where it will no doubt argue that its word on the "interpretation" is enough? Should the answer be different depending on whether it is a lower court or the Supreme Court in which DEA is litigating? Admin junkies will recognize a Brand X issue here, but it is not necessarily framed that way.