In front of a packed courtroom in Washington, the three-judge panel questioned ASA’s Chief Counsel Joe Elford and a federal lawyer about the merits of the scientific case, and the crucial legal issue of “standing.” Standing is a legal concept that restricts the right to sue to injured parties – people who are directly hurt by what they are fighting, and can get relief from a legal judgement. The issue of standing has been the reason why two prior appeals of the DEA’s classification of marijuana were rejected. In the past, patients have not been part of lawsuits against the Controlled Substances Act. The three judges were Merrick Garland, Karen Henderson, and Harry Edwards.

ASA’s Chief Counsel Joe Elford opened his appeal by arguing that the federal “Department of Health and Human Services plays a game of gotcha” by tightly controlling research access to cannabis and then claiming that there is not enough compelling research to justify reconsidering it as Schedule I. The Drug Enforcement Administration erred by determing that cannabis has a high potential for abuse when its findings determine its abuse and harm potential is less than other substances in less-controlled schedules, such as cocaine.

Judge Garland asked Elford if he was arguing that marijuana in fact meets HHS’s standard for studies. ASA’s counsel cited over 200 studies and argued that a circular standard is impossible to meet. He also said that, given that the schedule is relative, the DEA is ignoring even its own studies showing that marijuana has merely a “mild” potential for abuse.

Many observers felt the judges were willing to consider the argument of Michael Krawitz’s direct harm from the Controlled Substances Act, and this issue of “standing” has been the Achilles heel of past lawsuits against Schedule I. However, Judge Garland asked at one point, “Don’t we have to defer to the agency? We’re not scientists. They are.”