Are DEA Administrative Law Judges Unconstitutional?

Inept efforts by the DEA to assign two psychedelic drugs to Schedule I of the Controlled Substances Act have backfired thanks to a granted request for a restraining order that stalls the scheduling process for 2,5-dimethoxy-4-iodoamphetamine (DOI) and 2,5-dimethoxy-4-chloroamphetamine (DOC).

In addition to the scheduling controversy, DEA Administrative Law Judge (ALJ) Paul E. Soeffing has cordially acknowledged a challenge to the legal authority of his court in a constitutional test of the ALJ process itself. The lawsuit filed by Panacea Plant Sciences, Inc. (PPS), a company researching DOI/DOC and related compounds, argues that DEA ALJs lack the legal authority to override a President’s implementation of policies encouraging research on medicinal applications of psychedelic drugs:

On April 8, 2024, PPS filed a motion in the DEA ALJ proceedings to request: a) the ALJ/judge to issue an injunction against the DEA to stop the rule-making due to errors/violations under the Administrative Procedure Act, Regulatory Flexibility Act and Tribal Consultation Executive Orders, b) a stay of the proceedings and halt to all Drug Enforcement Administration activity on rulemaking regarding DOI and DOC … and c) an impending challenge to the constitutionality of the DEA ALJ process. […]

9. The hearing and scheduling poses a significant threat to the company. PPS conducts research and development on medical technologies which include the use of DOI or DOC for development and as products themselves. Currently, DOI and DOC are not controlled.

10. Under the Controlled Substances Act and its implementing regulations, PPS will be required to turn over to law enforcement or destroy our stock of DOI and DOC which means the rule-making acts as an effective taking of property.

11. As a result, when PPS received the hearing notice from DEA, it was faced with a stark choice: either default and lose automatically or defend itself against the DEA’s attempts to schedule DOI and DOC and its use of an ALJ-overseen adjudication. PPS is thus compelled to participate in the DEA’s adjudicatory proceedings. […]

12. That does not mean the ALJ proceedings should go forward. Under binding precedent, those proceedings violate Article II of the Constitution of the United States. As the Fifth Circuit held in Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022), the two-layer, for-cause removal restrictions applicable to ALJs impermissibly impair the President’s constitutional charge to take care that the laws are faithfully executed. The same restrictions on for-cause removal at issue in Jarkesy are at issue here. Specifically, Sections 7521(a) and 1202(d) of Title 5 of the United States Code prevent the President and Attorney General from removing DEA ALJs unconditionally. Rather, ALJs may be removed only for “good cause” as “determined” by the Merit Systems Protection Board (“MSPB”), whose members themselves can be removed by the President only on certain limited “good cause” grounds. This degree of insulation is unconstitutional. Indeed, because DEA ALJs do not satisfy either narrow recognized exception to the President’s unrestricted removal power, any degree of insulation is unconstitutional.

13. The DEA’s scheduling hearings has stakes that extend beyond PPS. DOI and DOC are widely used in research and development for pharmaceutical drugs related to the mind and other bodily systems. They are also key compounds for the research into schizophrenia and other related illnesses. Removing access to these compounds through legal channels and/or making their access more difficult would severely limit science and reduce the reproducibility of experiments and ability to compare to past research. This would lead to reduced development of new treatments and less understanding of medical conditions, which could lead to increased deaths and suffering in the United States and beyond over time. In addition, the unconstitutional taking of property by the government without access to an Article III court would set an illegal, and dangerous precedent. […]

Should Panacea Plant Sciences’ lawsuit prevail we could finally see an end to the offices or functions of the DEA Administrative Law Judge as well as any further DEA interference in the drug scheduling process. We might even see the beginnings of an American judicial system which recognizes that science-based remedies save the sick, not words.

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John Walters and William Barr linked to Nazis

Former ONDCP Director John P. Walters is at it again, only this time he has help from Donald Trump’s former US Attorney General, prohibitionist William P. Barr. Barr joins Walters in authoring a Hudson Institute publication claiming that marijuana is dangerous and its legalization was a big mistake. Their announcement was quickly debunked online here and here.

The Hudson Institute was originally founded by a nuclear war strategist named Herman Kahn who later became the inspiration for the character portrayed by Peter Sellers in Stanley Kubrick’s movie Dr. Strangelove. John Walters became the Institute’s CEO in 2021, and William Barr joined in 2022 as a “distinguished fellow.” What distinguishes Barr and Walters is an attitude common to the Nazis who viewed marijuana as “polluting the Aryan immune system.”

Blood pollution (or purity) and decadent foreign bodies were top priorities for Nazis. It’s why pot smokers were sent to concentration camps along with Jews, Roma, intellectuals, writers who criticized the Reich, private citizens who grumbled about the Reich, and other social outliers such as opioid and cocaine addicts. Identity cards carried by drug users incarcerated in the camps were colored red while ID cards for Jews were purple. Since the Second World War little has changed for people like former KKK leader David Duke and American Neo-Nazis who accuse Jews of working hard to get America stoned. They say Jews control the marijuana industry. They don’t. The US cannabis industry is democratically authorized by a voter majority and it’s defined and controlled by state governments and local laws.

Fascism seeks to redefine freedom. Under fascism people are free to do as they are told and the government is free to do as it wants. One way of creating a fascist society—other than engaging in drug wars—is to imitate Barr, Walters and the Nazis who dumb down their dialog and message to prevent their listeners or readers from engaging in complex and critical reasoning. Lies become the rule. Relevant science and research gets ignored or suppressed. For tyrants seeking political or social dominance drug hysteria is an easy effective tool that can be used against unproven enemies of the state or society.

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CIA versus the DEA in Burma’s Narcotopia

Rumors that the CIA orchestrated the meth and heroin trade in Southeast Asia during the Viet Nam War have been examined in Patrick Winn’s excellent new book, Narcotopia: In Search of the Asian Drug Cartel that Survived the CIA.

During the Viet Nam War the CIA was faced with a critical choice. The agency could undermine the drug trade of a Burmese tribal people called the Wa who occupied land next to the Chinese border, or they could leave the Wa alone to block Communist China’s expansion into the mountainous Golden Triangle area of Burma and beyond. Being the CIA, they threw their full support behind the Wa and their illicit drug activities.

The Wa were a simple, primitive people. They wore loin cloths and practiced head hunting, decapitating unwelcome intruders entering into their territory and proudly displaying the severed trophies nailed to skull posts. Wa occupation of the mountains of the Golden Triangle discouraged the inward migration of people from China and thus any Chinese national expansion. China in turn supplied the Wa with chemicals and the instructions needed to produce crystal meth, as well as materials to produce heroin from the opium harvested in the Wa’s local poppy fields. As a result, wartime US military personnel serving in Thailand and Viet Nam had easy access to nearly-pure heroin for a mere seven dollars per generously filled vial container. One-in-six American military service members were estimated to have used China White heroin and many became addicted.

When the DEA entered the scene the agency sought to capture and formally execute the leader of the Wa drug empire, Wei Xuegang. However, the Wa drug kingpin was considered an important ally by the CIA in the US battle against Asian Communists. In a spy versus spy series of events, the slick culprit always managed to elude captivity with a little help from his friends in Langley, Virginia.

By the end of the Viet Nam conflict the DEA had proven no match for the CIA and its version of a drug war. The Wa retained a drug empire that generates $60 billion in worldwide meth sales. It’s defended by 30,000 well-equipped Wa fighters. Winn attributes the DEA/CIA performance mismatch to differences in the recruitment tactics between the two agencies. The CIA prefers Ivy League types or members of top universities, while the DEA typically hires former law enforcement officers and

the sons (and sometimes daughters) of working class stock. Straight shooters by nature, they never smoked pot in high school. Their worldview skews monochrome: we’re the good guys, drug dealers are “scumbags”….

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White House pardons simple marijuana use, possession

A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana, Attempted Simple Possession of Marijuana, or Use of Marijuana

I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to all current United States citizens and lawful permanent residents who, on or before the date of this proclamation, committed or were convicted of the offense of simple possession of marijuana, attempted simple possession of marijuana, or use of marijuana, regardless of whether they have been charged with or prosecuted for these offenses on or before the date of this proclamation…

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DEA scammers plague the DEA

The US Department of Justice wants us all to know that internet swindlers are impersonating DEA agents and scamming money from people online. Unfortunately, the warning doesn’t include a similar public concern about the DEA’s own scams.

Actual DEA agents in plain-clothes are mugging airline passengers at Atlanta’s Hartsfield-Jackson International Airport by tricking disembarking passengers into being searched for cash when the passengers don’t know they are legally free to reject the search and simply walk away. Any cash seized by the agents disappears into a quagmire of red tape while returning the money to the traveler is made complicated. Passengers with a darker skin color make up 68-percent of the targeted travelers.

Recently the DEA repeated an unsuccessful attempt to prohibit certain psychedelic drugs by failing again to get them placed on Schedule I before researchers can discover any new medicinal information about the drugs. Allowing the DEA to arbitrarily choose what it prohibits or regulates can result in major conflicts of interest that benefit only the DEA. A Schedule I drug ranking can always be expected to extend the bureaucratic tenure of the DEA by encumbering new research for a drug and by arresting people who need it as a medicine.

For all this and more the DEA’s operations cost the American taxpayer more than $2.4 billion each year. Any progress toward winning the drug war should result in defunding the DEA and the socioeconomic complex it created. In some cases it might be possible to minimize the DEA’s impact by transferring the agency’s present duties to the Food and Drug Administration – like the scheduling of drugs – but these changes and any others designed to diminish the drug war won’t be encouraged by law enforcement agencies or the federal government. It would mean giving up their authority to mug airline passengers.

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Candace Owens attacks Native American drug use

Candace Owens (aka Candace O) conflates trans Native Americans with cannibalism and drugs:

…I don’t know what you’re talking about with Two-Spirit people. Is this like a Native American tribe, like high smoking and talking about your spirit? I’m asking you seriously, because when I think of Native American tribes talking about their spirits, I know that they used to smoke a lot, they used to do drugs, they also were cannibals who used to eat people, so I don’t know if we should be taking our cues from cannibals…I don’t think that there were trans Native Americans….

Criminalizing drugs weaponizes them. Since drug crimes typically lack victims who voluntarily act as plaintiffs against themselves, a law enforcement apparatus was created that can target just about anyone with planted evidence or accusations originating from personal enemies or a corrupt government. Famous drug suspects include Joan of Arc who was questioned by the Inquisition about her drug use prior to being burned at the stake in 1431 for wearing men’s clothes.

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Prohibitionists praise themselves for impeding medical science

Smart Approaches to Marijuana (SAM) President Kevin Sabet, a former three-time White House drug policy advisor, eulogizes the late-Senator Dianne Feinstein for her opposition to medicinal marijuana in the 1990s:

…“For a Californian like me working on drug policy, Senator Feinstein was a role model throughout my career in public service. She stood steadfast against legalization until the very end because she knew it was the right thing to do to protect public health and safety.

“Throughout her illustrious career, the Senator was a leader on drug policy even when the lobbyists and special interests came knocking. I was honored to work alongside her on numerous occasions. She opposed medical marijuana in the 90’s and later the state’s move to allow full-scale commercialization of THC drugs. Especially noteworthy was the late-Senator’s work on the “Protecting Kids from Candy-Flavored Drugs Act,” which she introduced as to help crack down on Big Marijuana’s predatory practices to hook new, younger users.

“Senator Feinstein will be missed by all who stand for a responsible, science-based approach to drug policy.” […]

Science-based? Really? Neither Dianne Feinstein nor Kevin Sabet were trained in the sciences or specifically in pharmacology. And when did it supposedly become the goal of science to thwart improved public health by prohibiting cannabis use as a medicine?

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Family Research Council demonizes psychedelics

Tony Perkins and Jennifer Bauwens of the Family Research Council (FRC)–a think tank and organization of churches accused of wanting to end democracy in the U.S. and replace it with a theocracy–are warning Americans that psychedelics open people up to demonic activities:

…when you’re reading the Bible and you see the word “witchcraft”… for example … Moses’ encounter with magicians in Egypt … those magicians weren’t just partaking in witchcraft to access the evil realm … they were also doing it with drugs … that now we would know as psychedelic or hallucinogenic drugs….

Ritualized medical applications gave Egypt’s witches and magicians a professional edge over the many competing religious practitioners who rejected drugs and particularly psilocybin mushrooms for use in treating serious disorders like major depression and PTSD. The devil is in the details. One detail includes a threat to the Family Research Council of a happy, healthy, well-adjusted and highly informed public engaging in critical thinking and exposure of demonic FRC schemes that perpetuate fallacies, anti-intellectualism and human misery in ways that obstruct medical science.

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Hotels adapt to serving the cannabis connoisseur

Public consumption of marijuana terrifies prohibitionists. In practice they appear to view cannabis users in groups as the moral equivalent of demonic rituals. Maybe it’s because for thousands of years heaps of smoldering marijuana and psychedelic herbs have been publicly consumed during mystic ceremonies, usually attended by all types of pagans, witches, heretics and ancient Romans participating in orgies. Whatever the reasons, the Las Vegas hotel industry is progressively challenging Nevada’s laws prohibiting public use of weed. According to Nevada attorney David Edelblute:

…the distinguishing legal factor of the … approach to cannabis consumption is that [a hotel] does not intend to sell cannabis products, or allow consumption in public areas. […]

Solutions lie in who considers what to be public. Pushing the legal boundaries, rooms on some hotel floors offer special air filtration systems where people can smoke their weed in private without offending others. Other types of spaces not deemed totally public make up the flexible boundary attracting the industry’s focus. As one hotel owner noted:

You don’t come to our hotel just to get stoned — it’s not the goal, Rizk said … You come for the experience, the events, the parties, the pool parties … and the fact that we allow (cannabis) consumption in certain areas, where permissible by law, is just an additional perk.

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Seizing addictive drugs can be fatal

If failure can be defined as something that creates the very crisis it’s intended to prevent, then a recent Brown University study of close-proximity opioid overdoses in Indianapolis confirms suspicions that little else fails like the drug war when it comes to saving lives.

The [researchers] found that within seven, 14 and 21 days, opioid-related seizures of drugs by police were significantly associated with increased overdoses within 100, 250 and 500 meters of the seizure location. Most notably, the number of fatal overdoses was two-fold higher than expected within seven days and 500 meters following an opioid-related incident in which police seized drugs.

The researchers hypothesized that the increase in overdose events was because people who use opioids will generally seek out a new supply after losing access to their previous drug supply, and that new supply will have unknown potency. In addition, in the time period between losing the familiar supply and finding a new one, people using opioids can experience diminished tolerance to drugs. Accidentally ingesting a dose beyond one’s tolerance can be fatal. […]

Congratulations are due the Brown University research team for making ‘drug war’ another definition of failure and enabling it to appear next to synonyms like breakdown, malfunction, cataclysm, crash, defeat, ruin, collapse, catastrophe, miscarriage, tragedy, frustration, and disappointment.

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