by Jeremy Daw
Judge Kimberly Mueller, the federal magistrate who made history by granting defense requests for a five-day hearing on the constitutionality of the continued inclusion of cannabis in Schedule I of the Controlled Substances Act, was originally scheduled to meet with the parties of US v Schweder et al for a status hearing this week — but has delayed that meeting until April 15th.
The latest delay represents the continuance of a pattern. Previously Judge Mueller agreed to a defense request for extended written arguments on the case, and now this is the second time she has delayed a hearing on her own motion pending her ruling on the question.
Obviously, she needs more time. But what can the delay mean for the fate of the defendants accused of trafficking in a Schedule I drug? While the shoals of predicting the actions of federal judges are littered with the hulls of many a journalist’s career (remember the ObamaCare decision?), nevertheless I feel sufficiently bold on this question to float out some educated guesses:
1. She will rule on the merits.
2. She is expecting an appeal.
3. She will find Schedule 1 unconstitutional.
What will happen after?
If my prediction is correct and Judge Mueller rules for the defense on the merits, the prosecutors can be expected to immediately move for an appeal and a temporary stay on her ruling until the matter can be heard by the 9th Circuit. Such a move could easily delay any ruling from taking effect until next year.
In the unlikely event that such a motion isn’t granted, then the administrator of the DEA can be expected to immediately schedule cannabis in Schedule II — which happens to be one of the moves contemplated by the CARERS bill just filed in the US Senate.
Thus, a favorable ruling by Judge Mueller will not by itself end the federal war on marijuana. Cocaine is listed in Schedule II, but any would-be Tony Montana in the US still has to worry about DEA raids.
Nevertheless, it would still be a huge win. Just as Judge Walker’s Prop 8 decision had a massive effect on the national politics of gay marriage, so too could a favorable ruling by Judge Mueller finally begin to budge an intransigent Congress into finally respecting the will of the people who voted them in office. Passing the CARERS bill would be a cinch.