JULY 30, 2024
"SCOTUS Chevron Deference Decision and Marijuana"
with David G. Evans, Esq., Senior Counsel
About our guest: David G. Evans, Esq., Senior Counsel

Cannabis Industry Victims Educating Litigators (CIVEL)
203 Main St. Suite 149 Flemington, NJ 08822 (908) 963-0254

David G. Evans, Esq., is Senior Counsel for the Cannabis Industry Victims Educating Litigators (CIVEL) who educate lawyers on how to make the marijuana industry accountable to their many victims. Mr. Evans was a plaintiff's litigator in personal injury and employment law cases. Attorneys who desire more information can contact Mr. Evans at seniorcounsel@civel.org. The CIVEL website is: www.civel.org

Before opening up his law practice in 1992, he was a Research Scientist in the Data Analysis and Epidemiology Services Unit, Division of Alcoholism and Drug Abuse, New Jersey Department of Health. He analyzed legal and regulatory requirements regarding: drug and alcohol abuse, research and data collection, courts, criminal justice, domestic violence, drug-free workplaces, juveniles, confidentiality, treatment, drug testing, AIDS, drug use forecasting, and discrimination.

Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (Supreme Court June 28, 2024)(click to read)

The Supreme Court held that courts need not, and under the federal Administrative Procedure Act (APA) may not, defer to a political branch agency's interpretation of the law simply because a statute is ambiguous; overruling Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (US 1984)

In the prior 1984 Chevron decision, which sometimes required courts to defer to political branch agency interpretations of ambiguous statutes that those agencies administered; the defining feature of its framework was the identification of statutory ambiguity, which then required judicial deference to the agency interpretation. This meant that government agenciesí interpretation of a law was taken as accurate. This allowed overreaching by power hungry agencies who interpreted laws in their own favor rather than by objectively looking at the power Congress had really granted them.

In Loper Bright Enterprises the Supreme Court held that the Framers structured the Constitution to allow judges to exercise their judgment regarding the interpretation of laws independent of influence from the political branches. The courts are not now bound by agency decisions.

While an agency's interpretation of a statute cannot bind a court, it may be especially informative to the extent it rests on factual premises within the agency's expertise A longstanding practice of the government, like any other interpretive aid, can inform a court's determination of what the law is, however, the interpretation of the meaning of federal statutes is exclusively a judicial function.

The weight and interpretations and opinions of the relevant agency depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. The courts can now insure that agencies have engaged in reasoned decisionmaking within their boundaries. In the business of statutory interpretation, if a federal agency's interpretation of a federal statute is not the best, it is not permissible.

For marijuana rescheduling this means that the DEA decision can be judged on:

1. The extent it rests on factual premises within the agency's expertise.
2. The thoroughness evident in its consideration.
3. The validity of its reasoning.
4. Its consistency with earlier and later pronouncements.
5. A longstanding practice of the government.

However, based on our analysis, the DEA decision is full of holes and it lacks crucial facts and has poor reasoning and it is not consistent with earlier pronouncements of the DEA, HHS and FDA and NIDA. In addition, it is the longstanding practice of the government to have marijuana listed as a Schedule I.

David G. Evans, Esq.
Senior Counsel
Cannabis Industry Victims Educating Litigators (CIVEL)
203 Main St. Suite 149
Flemington, NJ 08822