norml23 - Page 64
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NORNIL Vo DEA, supra. During final argument in the constitutionaJ
challenge, the following colloquy occurred (Transcript of argument, at
JUDGE ROBINSON: But in terms of making a moral judgment
as to what [ do that affects nobody else, is there a
right for any legislature to do that?
NR. MACK[NNON: Well, that is the question, Your Honor.
JUDGE ROBINSON: Yes, that is the question.
JUDGE PARKER: What is your answer to it?
MR. NACKINNON: My answer to Your Honor is that if there
is a rational basis for the legislation, even though it
its only an individual -_ on an individual basis what
they want to do-- that the legislation is
JUDGE ROBINSON: Well, let us take the rationaJ basis
standard. Are you really prepared to argue that there is
a rational basis for including marijuana as a Schedule
MR. MACKINNON: No, Your Honor.
JUDGE ROBINSON: You cannot do that because there is no
rational basis. MR. NACKINNON: Not that particular one.
That issue is not before the court.
JUDGE ROBINSON: A_ right.
HEW criticizes the Controlled Substances Advisory Committee for
recommending that certain cannabis materials be reschedu[ed to Schedule
[I in part to assist the state programs and facilitate access to
marijuana for researchers and patients. HEW stated that the rationale
of reschedu[ing marijuana to facilitate access was "not relevant to"
rescheduling decisions, and that "FDA and other u_its of the Department
have already acted to facilitate research with these substances by
other means, n 44 Fed. Reg. at 36127 Cols. 2-3. In defendants' view,
the Controlled Substances Advisory Committee was clearly correct in
concJuding that the question of whether to ease access for marijuana
for therapeutic and research purposes, in _ight of current know_edge
and conditions, is an integral part of the rescheduling decision. In
many ways, this is the heart of the rescheduling decision. The
principal result of reclassifying marijuana materials from Schedule I
would be to make them more easily accessible to researchers,
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