norml23 - Page 37
Page 37
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between the Attorney General and the Secretary of
HEW, in accordance with their respective spheres of
expertise. Section 201(d) directs the Attorney
General, as an initiaJ matter, to make a legal
judgment as to controJs necessitated by
international commitments° He then establishes a
minimum scheduJe or _evel of control below which
placement of the substance may not falt.
Determination of a minimum schedule ensures that
the Secretary's recommendation, which ordinarily
would be binding as to medical and scientific
findings, does not cause a substance to be
scheduled in violation of treaty obligation,so
However, once the minimum schedule is established
by the Attorney General, the decision whether to
impose controls more restrictive than required by
treaty impEicates the same medicaJ and scientific
considerations as do scheduling decisions regarding
those few substances not controlled by treaty. The
Secretary of HEW is manifestly more competent to
make these nonlegal evaluations and
recommendations°
NORML v. DEA, supra, 559 Fo2d at 747.
The Court then turned to the questions of whether the letter from
the Acting Assistant Secretary for Health was an adequate substitute
for Section 201(a)o(c) procedures, and whether the letter's conclusion
that marijuana had no currently accepted medical uses required a denial
of the NORML petition, as the DEA's final order had concluded. The
Court first ruled that medical use was only one of several factors
which must be considered in rescheduting:
If, as respondent contends, a determination that
the substance has no accepted medicaJ use ends the
inquiry, then presumably Congress would have
spelled that out in its procedural guide_ineso Its
failure to do so indicates an intent to reserve to
HEW a finely tuned balancing process invoh4ng
several medical and scientific considerations. By
shortcutting the referral procedures of Section
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