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19-997 (L)
United States v. Green
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2021
(Argued: December 7, 2021 Decided: August 31, 2022)
Docket Nos. 19-997 (Lead), 19-1027 (Con)
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL AMALFI, JR., CHRISTOPHER ALVINO, PETER WILK, MICHAEL MARCIANO,
Defendants,
ALEXANDER GREEN, CHARLES GREEN,
Defendants-Appellants.
Before: SACK, BIANCO, Circuit Judges, and UNDERHILL, District Judge.
*
Defendants-appellants Alexander and Charles Green were charged in the
United States District Court for the Western District of New York with, inter alia,
conspiracy to possess with intent to distribute 100 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. The Green
Brothers filed a joint motion to dismiss the narcotics conspiracy count on the
grounds that the classification of marijuana under Schedule I of the Controlled
Substances Act violates their Fifth Amendment due process and equal protection
rights. They argued that marijuana's scheduling has no rational basis because it
does not meet the statutory criteria for inclusion on Schedule I. The district court
(Wolford, J.) denied their motion to dismiss, concluding that they incorrectly
sought to tether the rational basis inquiry to the statutory criteria. We agree with
* Chief Judge Stefan R. Underhill, United States District Court for the District of
Connecticut, sitting by designation.
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United States v. Green
2
the district court that the Act's scheduling criteria are largely irrelevant to our
constitutional review because the rational basis test asks only whether Congress
could have any conceivable basis for including marijuana on the strictest schedule.
Because there are other plausible considerations that could have motivated
Congress's scheduling of marijuana, we conclude that its classification does not
violate the Green Brothers' due process or equal protection rights. We therefore
AFFIRM the order and judgment of the district court.
WILLIAM EASTON, Easton Thompson
Kasperek Shiffrin LLP, Rochester, N.Y., for
Defendant-Appellant Charles Green;
JEFFREY LICHTMAN (Jeffrey Einhorn, on the
brief), Law Offices of Jeffrey Lichtman, New
York, N.Y., for Defendant-Appellant
Alexander Green;
SEAN C. ELDRIDGE, Assistant United States
Attorney, for James P. Kennedy, Jr., United
States Attorney for the Western District of
New York, Rochester, N.Y., for Appellee.
SACK, Circuit Judge:
To decide this appeal, we must determine the proper scope of rational
basis review when analyzing equal protection and due process challenges to the
scheduling of a controlled substance under the Controlled Substances Act
("CSA"), 21 U.S.C. § 801. Defendants-appellants Alexander and Charles Green
(the "Green Brothers") urge us to limit the breadth of our constitutional analysis
to the CSA's scheduling criteria; that is, they argue that the inclusion of
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United States v. Green
3
marijuana on Schedule I—the CSA schedule with the strictest controls—violates
the equal protection and due process guarantees of the Fifth Amendment
because there is no rational basis on which to conclude that marijuana fulfills the
statutory requirements for placement on that schedule. In particular, the CSA
requires that a substance have no accepted medical use to be listed on Schedule I,
and the Green Brothers argue that marijuana's scheduling is irrational because of
the abundant evidence that marijuana has legitimate medical uses. They ask us
to strike down marijuana's Schedule I classification as unconstitutional and,
upon that basis, dismiss the narcotics conspiracy counts against them.
We decline to do so. The statutory criteria in the CSA are substantially
irrelevant to our review of the Green Brothers' constitutional claims. The rational
basis test requires us to ask whether there is any conceivable basis to support
Congress's decision at issue (here, to include marijuana on the strictest CSA
schedule). Thus, even if there are accepted medical uses of marijuana such that it
would not satisfy the listing criteria for a Schedule I substance under the CSA,
that fact would not be sufficient to render marijuana's scheduling
unconstitutional. Because there are plausible considerations that could have
motivated Congress to place marijuana on Schedule I, we conclude that
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United States v. Green
4
marijuana's scheduling does not violate the Green Brothers' due process or equal
protection rights. Accordingly, we affirm the decision of the United States
District Court for the Western District of New York (Wolford, J.) denying their
motion to dismiss the charges against them for conspiracy to possess with intent
to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B) and 846.
BACKGROUND
Over a four-year period, the Green Brothers were engaged in a marijuana
distribution scheme. Alexander Green obtained hundreds of kilograms of
marijuana from California which he shipped to his brother, Charles Green, in
New York State. The Green Brothers set prices for sale and, with the aid of coconspirators, distributed and sold the marijuana in the Rochester, New York
area. On March 27, 2014, a Western District of New York grand jury returned a
two-count indictment against the Green Brothers charging them with conspiracy
to possess with intent to distribute 100 kilograms or more of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h).
The Green Brothers filed a joint motion to dismiss the narcotics conspiracy
19-997 (L)
United States v. Green
5
count based on their argument that the CSA's classification of marijuana as a
Schedule I controlled substance violates their due process and equal protection
rights. They argued that marijuana's scheduling has no rational basis because it
does not meet the statutory criteria for Schedule I classification; that is, the CSA
requires that a substance have no currently accepted medical use in treatment in
the United States to fall under Schedule I, see 21 U.S.C. § 812(b)(1), and marijuana
does have accepted medical uses.1 The Green Brothers made clear that they "do
not request" a reclassification of marijuana under a different Schedule; they
"simply request the Court strike the offending statutory classification as
unconstitutional" and leave the issue of reclassification "to the legislative branch."
Factual Allegations and Legal Authorities in Supp. of Def.'s Mots., App'x 40, ¶ 17
(Apr. 10, 2015). In their motion to dismiss, the Green Brothers requested an
evidentiary hearing to present evidence of marijuana's medical uses and build
upon expert declarations submitted by two professors.
On June 27, 2016, after briefing and oral argument, Magistrate Judge
1 The Green Brothers also argued that marijuana failed to meet the two other
statutory requirements for Schedule I classification because, they assert, it does
not have a "high potential for abuse" and there is not "a lack of accepted safety
for use of the drug . . . under medical supervision." 21 U.S.C. § 812(b)(1).
19-997 (L)
United States v. Green
6
Jonathan Feldman issued a Report and Recommendation recommending that no
evidentiary hearing be conducted and that the Green Brothers' motion to dismiss
Count 1 be denied. United States v. Green, No. 14-CR-6038, 2016 WL 11483508
(W.D.N.Y. June 27, 2016) (Report and Recommendation). On December 7, 2016,
the United States District Court for the Western District of New York issued a
decision and order adopting the Magistrate Judge's Report and Recommendation
and denying the Green Brothers' motion to dismiss. United States v. Green, 222 F.
Supp. 3d 267, 269 (W.D.N.Y. 2016).
As an initial matter, the district court tentatively rejected the government's
argument that the court lacked jurisdiction over the Green Brothers' challenge to
marijuana's scheduling because CSA scheduling is an administrative
determination that is only subject to review in a circuit court. Id. at 272-73. The
district court concluded that it had jurisdiction to hear a "proper constitutional
challenge" to marijuana's scheduling. Id. at 272. However, it was "not convinced
that Defendants' argument constitutes a proper constitutional challenge" because
"[w]hen Defendants' argument is dissected, it essentially becomes an attack on
the scheduling of marijuana based on the criteria set forth in the statute," which
is "an argument that really should be asserted in a petition filed with the
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United States v. Green
7
Attorney General." Id. at 273. Nevertheless, the court identified binding
precedent that “stands for the proposition that a defendant may challenge the
scheduling of marijuana through a constitutional attack brought in the district
court," even though the court “question[ed] the soundness of [that] decision[] as
applied to the circumstances present here.” Id. at 274 (citing United States v.
Kiffer, 477 F.2d 349 (2d Cir. 1973)).
The district court also questioned whether the Green Brothers properly
raised an equal protection claim. The court "ha[d] trouble reconciling how the
classification of a drug, in and of itself, could implicate an individual's equal
protection rights" because "[d]rugs do not have constitutional rights—people
do." Id. Even so, the court continued its inquiry because (1) the Green Brothers
also asserted a due process claim, which is more inclusive yet leads to a similar
analysis, and (2) other courts have allowed defendants to launch equal protection
challenges based on classifications of things (rather than people). Id. at 274-75.
Applying rational basis review,2 the court held that the Schedule I
2 The district court agreed with the Magistrate Judge's decision to apply rational
basis review. Id. at 275. The Magistrate Judge applied the lowest tier of scrutiny
because (1) there is no fundamental right to use, sell, or possess marijuana
without facing incarceration and (2) the Green Brothers' racial classification
arguments—that marijuana's scheduling was racially motivated and imposes an
19-997 (L)
United States v. Green
8
classification of marijuana did not violate the Green Brothers' due process and
equal protection rights. Although the court agreed with the defendants that
"marijuana is . . . currently being used for medical purposes," it concluded that
the Green Brothers misidentified the key question in the case. Id. at 275. They
"focus their argument on the claim that it is not rational for Congress or the DEA
to continue to conclude that there is no acceptable medical use for marijuana,"
but "[r]ational basis review asks not whether it is reasonable to conclude that the
specific criteria in the statute have been met, but, rather, whether there is any
conceivable basis that might support the classification." Id. at 277. Because
"there are numerous conceivable public health and safety grounds" for placing
marijuana on Schedule I, the court concluded that there is a rational basis and
declined to dismiss the count. Id. at 279.3
outsized burden on people of color—failed because they could not establish that
Congress acted with invidious discriminatory purpose. Green, 2016 WL
11483508, at *3-*4, report and recommendation adopted, 222 F. Supp. 3d 267
(W.D.N.Y. 2016).
3 In the alternative, the district court concluded that the Green Brothers' claims
would fail even if it were to adopt their formulation of rational basis review, and
it decided that "[a]ny hearing on this issue is unnecessary." Id. at 280. "Whether
the medical purposes for which marijuana is being used is 'accepted' continues to
be debated. . . . Since the question is at least debatable, a court would err if it
were to substitute its judgment for that of the legislature." Id. (internal quotation
19-997 (L)
United States v. Green
9
On October 3, 2018, the Green Brothers pled guilty to a two-count
Superseding Information that charged them with a marijuana distribution
conspiracy and conspiracy to commit money laundering. The district court
sentenced Alexander Green to 48 months' imprisonment on each count, to be
served concurrently, and Charles Green to 27 months' imprisonment on each
count, also to be served concurrently. The Green Brothers reserved the right to
appeal the denial of their motion to dismiss the marijuana conspiracy count,
which they now do.
DISCUSSION
I. Standard of Review
We review de novo the denial of a motion to dismiss an indictment. United
States v. Smilowitz, 974 F.3d 155, 158 (2d Cir. 2020), cert. denied, 141 S. Ct. 2570
(2021).
II. Controlled Substances Act and Marijuana's Scheduling
The CSA—which Congress enacted as part of the broader Comprehensive
Drug Abuse Prevention and Control Act of 1970—places controlled substances
marks omitted). We take no position regarding this conclusion because it is not
necessary to resolve this appeal.
19-997 (L)
United States v. Green
10
into five schedules based on three factors: "[1] their accepted medical uses, [2] the
potential for abuse, and [3] their psychological and physical effects on the body."
Gonzales v. Raich, 545 U.S. 1, 13 (2005). The schedule on which a drug is placed
determines the strictness of manufacturing, distribution, and use controls. Id. at
14. To fall under Schedule I—the strictest schedule—a controlled substance must
have (1) "a high potential for abuse," (2) "no currently accepted medical use in
treatment in the United States,” and (3) "a lack of accepted safety for use of the
drug or other substance under medical supervision.” 21 U.S.C. § 812(b)(1).
When Congress first enacted the CSA, it placed marijuana on Schedule I,
relying on the recommendation of the Assistant Secretary of the Department of
Health, Education, and Welfare that marijuana be strictly controlled until
pending studies were completed. Raich, 545 U.S. at 14. Yet Congress's initial
scheduling of marijuana has never changed. As a result of Congress's
determination, "the manufacture, distribution, or possession of marijuana
became a criminal offense, with the sole exception being use of the drug as part
of a Food and Drug Administration preapproved research study." Id. If
marijuana were demoted to a lower schedule, individuals would be able to
obtain it for personal medical use with a valid prescription. See 21 U.S.C.
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United States v. Green
11
§ 829(a)-(c).
The CSA prescribes a process for reclassifying controlled substances. The
Attorney General has the power—now delegated to the Drug Enforcement
Administration ("DEA")—to reclassify a drug, subject to certain limitations. 21
U.S.C. § 811(a); 28 C.F.R. § 0.100(b). Those seeking to challenge the government's
scheduling of a controlled substance can file an administrative petition and, if
necessary, obtain review of an adverse determination in a federal circuit court.
See 21 U.S.C. § 877. As we have explained, "[t]he question [of] whether a
substance belongs in one schedule rather than another clearly calls for fine
distinctions, but the statutory procedure at least offers the means for producing a
thorough factual record upon which to base an informed judgment." Kiffer, 477
F.2d at 357. "[T]he very existence of the statutory scheme indicates that, in
dealing with this aspect of the 'drug' problem, Congress intended flexibility and
receptivity to the latest scientific information to be the hallmarks of its approach."
Id.
There have been several attempts to reclassify marijuana through the
CSA's administrative process. See Green, 222 F. Supp. 3d at 272 (identifying at
least six instances). But "[d]espite considerable efforts to reschedule marijuana, it
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United States v. Green
12
remains a Schedule I drug." Raich, 545 U.S. at 15.
III. Analysis
A. Threshold Issues
Before deciding the merits of the Green Brothers' motion to dismiss, we
address three threshold issues: (1) whether they bring a proper constitutional
challenge, which can be adjudicated by the district court, or a statutory claim,
which must be brought as an administrative petition; (2) whether, despite raising
constitutional defenses, they were nevertheless required to exhaust
administrative avenues for relief; and (3) whether they failed to show that their
injury could be redressed by the relief they seek.
1. The district court had jurisdiction to hear the Green Brothers'
constitutional defense.
First, we conclude that the district court had jurisdiction over the Green
Brothers' constitutional defenses irrespective of whether their proposed analysis
mirrors that of an administrative petition. The district court expressed doubt
that it had such jurisdiction because it "question[ed] whether Defendants have
attempted to disguise as a constitutional claim an argument that really should be
asserted in a petition filed with the [DEA]." Green, 222 F. Supp. 3d at 273. The
CSA establishes a process for seeking reconsideration of a controlled substance's
19-997 (L)
United States v. Green
13
scheduling based on the CSA's statutory factors, and that process requires
individuals to file an administrative petition, the denial of which is directly
reviewable in the courts of appeals. See 21 U.S.C. §§ 811(a), 877. The district
court expressed concern that, "[a]lthough Defendants attempt to avoid that
statutory scheme by couching their challenge in constitutional language, it seems
as though they are really challenging the administrative determination not to
reclassify." Green, 222 F. Supp. 3d at 273.
We appreciate the district court's concerns, but we think that there is a
meaningful difference between seeking review of the denial of an administrative
petition (over which the district court does not have jurisdiction) and an asserted
constitutional defense, however mistaken (over which it does). Although, as
discussed below, the Green Brothers misconstrued the proper constitutional
question by urging us to restrict our rational basis review to statutory criteria,
they nonetheless raised a constitutional defense.4 We need not accept the
4 In concluding that the Green Brothers raised a constitutional defense, we
consider it worth noting that the Green Brothers did not ask the court to
reschedule marijuana outside of Schedule I, which would have "call[ed] for fine
distinctions" that are best left to administrative agencies. Kiffer, 477 F.2d at 357.
Rather, they appropriately "request[ed] the Court strike the offending statutory
classification as unconstitutional"—i.e., deschedule marijuana—and leave any reclassification efforts "to the legislative branch" or DEA. App'x 40.
19-997 (L)
United States v. Green
14
defendants' formulation of the constitutional analysis to exercise jurisdiction over
their claims.
2. The Green Brothers were not required to exhaust administrative
avenues for relief prior to mounting a constitutional defense.
The government expressed skepticism as to whether the Green Brothers
can raise their constitutional defense without first exhausting available
administrative remedies. Administrative exhaustion is a doctrine that "holds
that federal courts should refrain from adjudicating a controversy if the party
bringing suit might obtain adequate relief through a proceeding before an
administrative agency." Washington v. Barr, 925 F.3d 109, 116 (2d Cir. 2019).
Although the district court ultimately concluded that it was bound to excuse the
Green Brothers' failure to exhaust based on our decision in United States v. Kiffer,
supra, it "question[ed] the soundness" of that precedent. Green, 222 F. Supp. 3d at
274. We see no issue with the rule identified in Kiffer, and we reaffirm that no
such exhaustion is required.
In Kiffer, we entertained a similar constitutional challenge to marijuana's
scheduling. The government argued that the criminal defendants should "be
estopped from attacking . . . the constitutionality" of marijuana's scheduling until
19-997 (L)
United States v. Green
15
they had fully exhausted the CSA's administrative remedies. Kiffer, 477 F.2d at
351. “We put to one side the obvious rejoinder that the administrative agency. . .
does not have the power to declare the Act unconstitutional," because the
"administrative remedy would have obtained for appellants the very relief they
s[ought]" through their constitutional claim. Id. We nevertheless identified an
additional "two reasons" for not requiring administrative exhaustion. Id. First,
we explained that there was "some doubt" whether an administrative remedy
even existed in 1973 because, at that time, the relevant official had taken the
position that he could not consider petitions to reclassify marijuana. See id. The
Green district court correctly noted that this reason is largely irrelevant today,
because that official's position was ultimately rejected by the courts. See Green,
222 F. Supp. 3d at 274.
However, the second reason we identified for excusing non-exhaustion in
Kiffer remains valid: "[E]ven assuming the existence of a viable administrative
remedy, application of the exhaustion doctrine to criminal cases is generally not
favored because of 'the severe burden' it imposes on defendants." Kiffer, 477 F.2d
at 352 (quoting McKart v. United States, 395 U.S. 185, 197 (1969)); see also Moore v.
City of E. Cleveland, 431 U.S. 494, 497 n.5 (1977) ("[R]equiring exhaustion of
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United States v. Green
16
administrative remedies . . . is wholly inappropriate where the party is a criminal
defendant . . . asserting constitutional invalidity of the statute under which she is
being prosecuted."); Washington, 925 F.3d at 119-20 (requiring exhaustion in civil
suit challenging marijuana's scheduling but distinguishing Kiffer's waiver of
exhaustion because it involved a constitutional defense raised by criminal
defendants). As we recently observed, "[t]he exhaustion requirement under the
CSA is . . . prudential, not jurisdictional. It is not mandated by the statute.
Rather, it is a judicially-created administrative rule, applied by courts in their
discretion." Washington, 925 F.3d at 119. "[J]udge-made exhaustion doctrines,
even if flatly stated at first, remain amenable to judge-made exceptions." Ross v.
Blake, 578 U.S. 632, 639 (2016).
We see no reason to disturb the exception we recognized in Kiffer for
criminal defendants disputing the constitutional validity of a controlled
substance's scheduling. We therefore conclude that criminal defendants need
not exhaust the CSA's administrative process for reclassifying a controlled
substance prior to raising a constitutional defense seeking to deschedule that
substance.
3. The Green Brothers would benefit from the relief they seek.
The government argues that "the classification of marijuana as a Schedule I
19-997 (L)
United States v. Green
17
drug . . . had no effect on the Green Brothers' actual or potential punishment"
because the penalty ranges for marijuana offenses are now tied to "the amount of
marijuana involved, not its classification as a Schedule I controlled substance."
Appellee's Br. at 13. Therefore, the government argues, the Green Brothers
would have faced the same penalties whether marijuana was on Schedule I or
reclassified to another schedule.5 We disagree that the Green Brothers would not
benefit from the relief they seek.
Although the government correctly notes that sentencing for marijuana
offenses is currently based on weight,6 the remedy for the unconstitutional
scheduling of marijuana, if the Green Brothers' defense were to prevail, would
likely be the removal of marijuana entirely from any schedule. Unless and until
the government rescheduled marijuana, it would cease to be a "controlled
substance." Thus, the distribution of marijuana would no longer be the
5 The government frames this as an argument that the "Green Brothers cannot
make the threshold showing that the classification of marijuana as a Schedule I
drug deprives them of a constitutionally protected liberty interest," but
recognizes that other courts have treated this as an argument that a defendant
lacks "standing" to challenge marijuana's classification. Appellee's Br. at 13-15.
6 See, e.g., 21 U.S.C. § 841(b)(1)(A)(vii) (imposing minimum of 10 years and
maximum of life for offenses involving 1000 kilograms or more of marijuana); id.
§ 841(b)(1)(B)(vii) (imposing minimum of 5 years and maximum of 40 years for
offenses involving 100 kilograms or more of marijuana).
19-997 (L)
United States v. Green
18
"distribut[ion] . . . [of] a controlled substance" in violation of 21 U.S.C. § 841(a)(1),
and, therefore, would not be punishable by the weight-based penalties in Section
841(b). There is, of course, a difference between the 40-year maximum the Green
Brothers faced and the lack of penalty they would face if marijuana were
descheduled. Thus, the Green Brothers have shown that their injury could be
redressed, at least in theory, by the relief they seek.
B. Constitutional Analysis
Moving on to the constitutional questions posed by the Green Brothers, we
conclude, for substantially the reasons proffered by the district court, that that
the Green Brothers' due process and equal protection claims fail.
The Fifth Amendment includes an explicit Due Process Clause and an
implicit equal protection guarantee that is "precisely the same as . . . equal
protection claims under the Fourteenth Amendment." Sessions v. MoralesSantana, 137 S. Ct. 1678, 1686 n.1 (2017) (quoting Weinberger v. Wiesenfeld, 420 U.S.
636, 638 n.2 (1975)). Since, in the context of this appeal, the due process and
equal protection claims are essentially identical, we analyze them together. See
Chapman v. United States, 500 U.S. 453, 464-65 (1991) (explaining that, in the
context of due process claims based on a "right to be free from deprivations of
19-997 (L)
United States v. Green
19
liberty as a result of arbitrary sentences" caused by arbitrary statutory
classifications, "an argument based on equal protection essentially duplicates an
argument based on due process").7 For either type of claim, when a challenged
statute does not implicate suspect or quasi-suspect classifications or burden
fundamental rights, we apply rational basis review, which demands only that the
classification be rationally related to a legitimate governmental interest. See
Heller v. Doe, 509 U.S. 312, 320 (1993); Molinari v. Bloomberg, 564 F.3d 587, 606 (2d
Cir. 2009). The Green Brothers raise no arguments on appeal to support
applying a stricter form of scrutiny, and we conclude that rational basis review
7 The district court questioned whether the defendants had properly articulated
an equal protection claim, noting that "[d]rugs do not have constitutional
rights—people do." Green, 222 F. Supp. 3d at 274. Although the concept of equal
protection claims based on arbitrary classifications of things (rather than unequal
treatment of people) is undoubtedly puzzling, the Supreme Court clearly permits
such claims. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-63
(1981) (permitting equal protection challenge to legislative classification
differentially treating "plastic and nonplastic nonreturnable milk containers");
United States v. Carolene Prods. Co., 304 U.S. 144, 153-54 (1938) ("[W]e recognize
that the constitutionality of a statute, valid on its face, may be assailed by proof
of facts tending to show that the statute as applied to a particular article is
without support in reason because the article, although within the prohibited
class, is so different from others of the class as to be without the reason for the
prohibition.").
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United States v. Green
20
applies to their claims.8
The key question on appeal is how to properly frame our rational basis
analysis. The Green Brothers argue that whether there is a rational basis for
including marijuana on Schedule I requires an inquiry into whether it is rational
for the government to conclude that marijuana meets each of the statutory
criteria for that schedule. In particular, they assert that it is irrational to conclude
that marijuana has no accepted medical uses. We conclude—as the district court
did—that the Green Brothers are asking us to improperly tether the
constitutional question to statutory factors. See Green, 222 F. Supp. 3d at 277
("Rational basis review asks not whether it is reasonable to conclude that the
specific criteria in the statute have been met, but, rather, whether there is any
conceivable basis that might support the classification.").
8 Although the Green Brothers include a footnote assuring us that they have not
"abandon[ed] a claim that stricter scrutiny applies," Appellants' Br. at 20 n.8, they
make no effort to rebut the district court's conclusions that (1) the scheduling of
marijuana implicates no fundamental right, see Green, 2016 WL 11483508, at *3
(Magistrate Judge's report and recommendation) (quoting Kiffer, 477 F.2d at 352-
53 ("[T]here is no colorable claim of a fundamental constitutional right to sell
marihuana . . . .")), and (2) they failed to show that marijuana's inclusion on
Schedule I was motivated by discriminatory intent toward a suspect class, see id.
at *4; Green, 222 F. Supp. 3d at 275 (agreeing with "the reasons articulated in the
Report and Recommendation" for applying rational basis review).
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United States v. Green
21
We reject their reasoning because, on rational basis review, "it is entirely
irrelevant for constitutional purposes whether the conceived reason for the
challenged distinction actually motivated the legislature." F.C.C. v. Beach
Commc'ns, Inc., 508 U.S. 307, 315 (1993). Indeed, "a legislative choice" to make a
particular classification "may be based on rational speculation unsupported by
evidence or empirical data." Id. Therefore, "[o]n rational-basis review, a
classification in a statute . . . comes to us bearing a strong presumption of
validity." Id. at 314. It is not enough for "those attacking the rationality of the
legislative classification" to argue that Congress's stated reasons do not support
the decision it made; rather, challengers "have the burden to negative every
conceivable basis which might support it." Id. (emphasis added) (internal
quotation marks and citation omitted). The rational basis test is thus an
extremely deferential standard. It precludes second-guessing Congress's
"wisdom, fairness, or logic of legislative choices." Heller, 509 U.S. at 319 (quoting
Beach Commc'ns, Inc., 508 U.S. at 313). Accordingly, if a classification's rationality
is "at least debatable," we must refrain from questioning Congress's judgment.
Clover Leaf Creamery Co., 449 U.S. at 464 (internal quotation marks omitted).
Thus, even if marijuana's classification would not survive an
19-997 (L)
United States v. Green
22
administrative petition for rescheduling because it fails to meet the statute's
enumerated criteria, it is not unconstitutional unless there is no conceivable basis
for placing marijuana on the strictest schedule. The Green Brothers convincingly
argue that it is irrational for the government to maintain that marijuana has no
accepted medical use, and we agree with the district court that—if this were an
appeal from an agency's denial of a petition to reschedule marijuana—it would
therefore be difficult for us to conclude otherwise. See Green, 222 F. Supp. 3d at
275. But that is not enough to establish their equal protection and due process
defenses. As we have explained, they "must do more than show that the
legislature's stated assumptions are irrational—[they] must discredit any
conceivable basis which could be advanced to support the challenged provision,
regardless of whether that basis has a foundation in the record, or actually
motivated the legislature." Beatie v. City of New York, 123 F.3d 707, 713 (2d Cir.
1997) (internal citations omitted and emphasis in original). As the district court
recognized, "there are numerous conceivable public health and safety grounds
that could justify Congress's and the DEA's continued regulation of marijuana as
a Schedule I controlled substance." Green, 222 F. Supp. 3d at 279. More
specifically, as the district court explained:
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United States v. Green
23
One need only review the DEA's most recent denial of a petition to
reschedule to recognize the continuing public health and safety issues
associated with marijuana use—it "induces various psychoactive
effects that can lead to behavioral impairment"; it can result in a
"decrease in IQ and general neuropsychological performance" for
those who commence using it as adolescents; it may result in adverse
impacts on children who were subjected to prenatal marijuana
exposure; it "is the most commonly used illicit drug among
Americans aged 12 years and older"; and its use can cause recurrent
problems related to family, school, and work, including repeated
absences at work and neglect of family obligations.
Id. (quoting Denial of Petition to Initiate Proceedings to Reschedule Marijuana,
81 Fed. Reg. 53,767, 53,770, 53,774-75, 53,783-74 (Aug. 12, 2016)). And "[w]here
there are plausible reasons for Congress' action, our inquiry is at an end." Beach
Commc'ns, Inc., 508 U.S. 307, 313-14 (internal quotation marks omitted).9
For these reasons, we conclude that the district court properly rejected the
Green Brothers' equal protection and due process defenses.
9 We also reject the Green Brothers' argument that they are entitled to a hearing
to force the government to produce evidence of a rational basis for marijuana's
scheduling. Because the burden is on the Green Brothers "to negative every
conceivable basis" for placing marijuana on the strictest schedule, there is also no
need for the government to produce evidence to support the classification. Beach
Commc'ns, Inc., 508 U.S. at 315 (internal quotation marks omitted); see Heller, 509
U.S. at 320 (explaining that, on rational basis review, the government "has no
obligation to produce evidence to sustain the rationality of a statutory
classification").
19-997 (L)
United States v. Green
24
CONCLUSION
We have considered the Green Brothers' remaining arguments on appeal
and conclude that they are without merit. For the reasons explained above, we
AFFIRM the order and judgment of the district court.
