Ok so this was recently posted on Reddit and while I am pretty dense and when it comes to legal language maybe you guys can make more sense of it than I can.
What it seems to me to indicate though, is that we aren't necessarily YET in as much trouble as some of us think we are, and that this is a very long process which could eventually go one way or another, but won't lead to anything most likely in the immediate future:
Legal Perspective on SITSA: All you need to know
"Law Student here who has written on the topic of Kratom bans and the appropriate action to take should the worst happen. I want to backup from SITSA and elaborate on where we are and what are options are and why you all need to take a deep breath and relax but also stay vigilant. We are not in as bad of a position as you think.
So the attorney general has three options assuming SITSA is passed these are emergency scheduling under 21 USC 811 (h), permanent scheduling under 21 USC 811 a, and SITSA scheduling. All three are bad cases for the attorney general to make.
Just to fill you in on each form of scheduling here goes:
This is the statutory language;
" If the Attorney General finds that the scheduling of a substance in schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety, he may, by order and without regard to the requirements of subsection (b) relating to the
Secretary of Health and Human Services, schedule such substance in schedule I if the substance is not listed in any other schedule in
section 812 of this title"
This basically means that the attorney general can schedule without getting preclearance from the department of health and human services in their recommendation. Then the attorney general publishes a rule in the register demonstrating that the substance meets the imminent threat to public health, and has a high potential for abuse and lack of accepted and safe medical use. Under this route the AG bans for two years without judicial. However the court in Touby v. US said that prosecutions under those who posses temporarily banned substances can be challenged in court (this is huge for SITSA). The AG already backed out of this route and opened the beginning stages of option two, permanent scheduling.
2) Permanent scheduling
Under permanent scheduling 21 USC 811 a requires a full hearing on the record which will take a year or longer given the extensive process of scheduling hearings (see the DEA MDMA hearings that took two years), then if we lose there we get judicial review which will likely add two more years to the process. Not to mention the weak regulatory case that the DEA has in actually banning kratom because it does not meet the abuse standard required under 21 usc 811 and 812. The DEAs legal counsel probably knows this and it really isn't a good case.
The language is here:
" The Attorney General shall, before initiating proceedings under subsection (a) to
control a drug or other substance or to remove a drug or other substance entirely from the schedules, and after gathering the necessary data, request from the
Secretary a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a
controlled substance. In making such evaluation and recommendations, the Secretary shall consider the factors listed in paragraphs (2), (3), (6), (7), and (8) of subsection (c) and any scientific or medical considerations involved in paragraphs (1), (4), and (5) of such subsection. The recommendations of the Secretary shall include recommendations with respect to the appropriate schedule, if any, under which such drug or other substance should be listed. The evaluation and the recommendations of the Secretary shall be made in writing and submitted to the Attorney General within a reasonable time. The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance. If the Attorney General determines that these facts and all other relevant data constitute substantial evidence of potential for abuse such as to warrant control or substantial evidence that the drug or other substance should be removed entirely from the schedules, he shall initiate proceedings for control or removal, as the case may be, under subsection (a). "
3) SITSA (this is a weak argument to assuming it passes)
To dispel a few rumors about SITSA
- We have no recourse once it is banned because the bill bars judicial review
This is only partially true, while it will bar judicial review during the rule making stage, all we have to do is get someone arrested for small possesion of Kratom then we are entitled to challenge the constitutionality or statutory construction by the DEA of the law
2) The laws broad language will per se give the authority to ban Kratom
This really isn' true also. In administrative law many of the issues dealt with come down to the two mostly binary modes of statutory interpretation. First is textualism, what does the text of the bill say, any textualist judge will absolutely rule in our favor seeing as the drug is clearly and textually committed to stopping synthetic lab created substances not natural plants. The DEA tried to ban hemp in a way that was contrary the marijuana statute and the court in HIA v. DEA (2004) 9th circuit shot them down. A textualist would see the language of the bill and its explicit title and clearly demonstrate that the DEA overstepped its statutory authority.
The next mode of interpretation is the pragmatist mode, mostly these guys look to the intent of the bill along with its language., this is again a slam dunk seeing as the legislative history, senate sponsor statements regarding fentanyl, and the bills title clearly and expressly without doubt limit the bill to synthetic substances.
3) There is also a vagueness argument but that doctrine isn't well established in challenging regulatory delegation by congress.
Bottom line is none of these provisions that the DEA has access to really pass the Chevron smell test, chevron is the doctrine that courts use when scrutinizing agency interpretation of their own statute. Step 1 requires a reading of the statute to see if there is ambiguous if the language is clear (which it is in this case) the clear language and intent of congress controls we could really stop here, however step two says if no ambiguous law exists was it a permissible construction of the statute, even in this case the answer is no because of the legislative history and clear intent of congress.
So please relax and get ready to fight for an amendment. We have plenty of legal options and we are in a position of strength to continue to fight at the federal level. For those of you who terror post every time one of these things happen please just relax and call when the AKA asks for you to do so."
