While visiting the Maps Forum a few days ago, an interesting conversation developed…….

Starting in the early 1980s, the DEA was aware of open sales of Ecstasy in Texas. I’ve always thought that Sen. Lloyd Bentson of Texas brought this matter to the attention of the DEA, but I can find no documentation of that. In any case, the DEA decided to criminalize MDMA and placed a notice in the Federal Register on July 27, 1984 announcing that it would place MDMA in Schedule I in 30 days unless any objections were filed. The underground MDMA therapy community had expected that the DEA would eventually try to criminalize MDMA, and some in the therapeutic community were prepared. A group of reputable scientists and doctors filed objections and went to the DEA headquarters in DC and filed the papers requesting a hearing. The DEA was forced to schedule a hearing……….

How does the DEA go about doing this? Does the DEA receive a directive from the AG? Who and under what circumstances can the DEA be compelled (forced) to hold hearings regarding placing a drug in schedule I. Is this something which must be initiated by a request from a member of a legislative body, or is it by way of executive order? Can the public at large, or members of the general public initiate a request (or demand) for DEA hearings on whether or not to schedule a previously unscheduled drug?

Here is what I do understand…..
The AG does have the power to criminalize drugs, but the AG has subdelegated this power to the DEA. Once the DEA decides to schedule a drug, it has to announce this in the Federal Register. Anyone objecting has 30 days to file an objection and request a hearing. If noone files an objection within 30 days, then the drug gets scheduled, methinks.

Lastly (but more of a philosophical question), wouldn’t this whole process violate the constitutional separation of powers by allowing the executive branch to write (and approve) laws?

On that last point, unfortunately, no. Congress gave the power to schedule specific new drugs to the AG.

One of the main reasons that the process of “writing and approving” laws by the executive branch does not violate the separation of powers is that the DEA (via the mandate of the Attorney General) is an administrative agency. Administrative agencies were created by congress in order to ease day-to-day administration and enforcement of laws under the executive branch. These agencies are basically only subject to their own rules as there is very little power vested within the judiciary to review the agency’s actions with the ‘required’ checks and balances. Honestly, the only way to reverse an agency decision, once made, is to prove that they have violated THEIR OWN written policies. However, there is a process of notice and comment that the agencies must undergo before changing something. The way that the agencies give notice to the people and allow comments to be made is by publishing, via the federal register, proposed changes. This sounds very democratic, but in actual practice it means that in order to gain actual notice, you have to dig through the federal register…which I HIGHLY recommend checking it out sometime if you’re near a legal library, just for kicks. All in all, it’s quite a frustrating endeavor. Consequently, little or no notice is rarely ever given, so only those folks who are deeply entrenched in a subject actually find out about proposed rule-changes.

My point?

Agencies can basically do whatever they want, however they choose, all of the time. Their ability to violate civil liberties knows no bounds. Just google the phrase ‘powers of inquisition’ with respect to administrative agencies. They can violate basic civil liberties under their investigatory power, and they do it ALL THE TIME.

As I’d like to be a public official someday, I’ve reached the end of my public rant.