For months, the loudest opponents of rescheduling have called reform a corporate payday. In a July 2 filing defending rescheduling, the Justice Department told a federal court the money is on the other side: the two groups trying to freeze the policy are guarding a commercial interest the drug laws were never written to protect.
One of the loudest arguments against cannabis reform has always been about money. Legalizers are in it for the cash, prohibitionists have argued, and the science is just the wrapping paper. On July 2, in a filing before the D.C. Circuit, the Justice Department argued that the challengers’ alleged harms were commercial interests the CSA was never written to protect. Two of the groups trying to freeze marijuana rescheduling asked the court to hit pause on the reform, and the government told the judges that those two were guarding their own revenue.
The two groups behind the request are a drug-testing trade association and a pharmaceutical company that has never brought a product to market. The DOJ told the court that both of them “invoke pocketbook interests served by keeping all marijuana in Schedule I.” Their own sworn declarations, the government argued, undercut their request for a stay.
Here is the shape of it. In April, Acting Attorney General Todd Blanche moved FDA-approved cannabis medicines and state-licensed medical marijuana from Schedule I to Schedule III. A coalition of prohibition and drug-testing groups, two state attorneys general and a pharmaceutical developer is suing to undo that order, Kevin Sabet’s Smart Approaches to Marijuana and the attorneys general of Nebraska and Indiana among them. But the request to freeze the order while the case plays out came from just two of those parties, the National Drug and Alcohol Screening Association, or NDASA, and MMJ International Holdings. The government’s answer was blunt. The petitioners, it wrote, “come nowhere near satisfying the demanding standard for that extraordinary relief.”
The Accusation, Turned Around
For over a year, the case against reform has run on a single accusation. Sabet has made it repeatedly, including in a video posted as the DEA hearing opened: the government moved on marijuana because of industry money and campaign donations from cannabis executives, not because the science changed. The July 2 brief never answers Sabet directly. But read against that year of messaging, it lands as an inversion. If this is about money, it is worth asking whose.
Their Own Declarations
The answer is in the challengers’ own paperwork. NDASA told the court that its members would lose money if employers stopped screening for marijuana. In a sworn declaration, the group’s executive director estimated that marijuana-positive results are the largest source of revenue at the medical review offices that read drug tests, and projected a revenue decline of “at least 35%” over the next 6 to 12 months if the order stands. NDASA also attached a number to what compliance would cost its members: about $700,000, spread across 700 employers. Do the arithmetic and it comes to a thousand dollars each. That is the figure the group called irreparable harm, the kind of injury that is supposed to justify a court freezing federal drug policy. A thousand dollars per employer. One cannabis attorney who reviewed the motion did the same math and called the argument “ridiculous.”
MMJ’s claim is stranger. The company says it spent eight years and $10 million developing cannabinoid drugs the proper way, through the FDA, and that rescheduling rewards state-licensed competitors who skipped that path. The problem, as the DOJ pointed out, is that MMJ has no product on the market. It has applications pending, not medicine on shelves. You cannot lose your share of a market you have not entered. Its complaint, the government argued, describes a policy it dislikes, not an injury a court can fix.
The Zone of Interests
Then the DOJ reached for a doctrine that does quiet, structural damage. Call it the zone of interests. Even if these groups could prove they would be hurt, the government argued, the kind of hurt they describe is not what the Controlled Substances Act was written to prevent. “Congress enacted the CSA to ensure the proper regulation of substances for research and medical use,” the brief reads. “It did not enact the CSA to provide drug screeners with a permanent source of income for testing marijuana, nor did it enact the law to protect ‘market opportunities’ for the creation of ‘cannabinoid-based drugs.’” A drug-testing lobby and a company with nothing to sell, the DOJ told the court, are not the people the drug laws exist to protect. Their asserted injuries “fall outside the statute’s zone of interests.”
On standing, the question of whether a party has the kind of concrete stake that lets it sue at all, the brief was just as pointed. NDASA offered only “generalized speculation” about how the order might hit the drug-testing industry, the DOJ wrote, and never named a single member with a concrete injury. The harm it forecast also runs through employers, third parties not in the case, choosing on their own to drop marijuana from their testing panels. The government called that speculative rather than “predictable,” and argued that any added cost to screeners whose clients keep testing would trace back to the screeners’ own billing decisions, not the order. Harm a party brings on itself, the DOJ noted, is not the kind of injury that gets you into federal court, a point it grounded in the D.C. Circuit’s decision in National Family Planning & Reproductive Health Association v. Gonzales.
The Same Fight, One Room Over
If this sounds familiar, it should. Inside the DEA’s rescheduling hearing across the river in Arlington, a proceeding the agency had stacked with opponents, those same groups have spent more energy attacking the government’s scientific test than contesting what it found, because the medical-use finding is the harder ground to fight on. Their stay motion does press the public-health alarm, with warnings about adolescents and addiction. The DOJ’s answer is that none of that is the injury the law lets them sue over. What gives them standing and what the drug laws were written to weigh are two different things, and once you strip the motion down to the harm a court can act on, it reads like a balance sheet. Inside the hearing, the fight was over the test. In court, the injury is a ledger.
What a Freeze Requires
None of this means the challenge is dead. The petitioners still have a real argument on the merits, built on NORML v. DEA, a 1977 D.C. Circuit decision holding that the attorney general may use the treaty shortcut only as far as necessary to meet the nation’s treaty obligations, and must seek the binding medical and scientific recommendation of HHS before rescheduling. That fight is legitimate and it is not going away. But a stay is a different animal. Under the four-part test the Supreme Court laid out in Nken v. Holder, a party asking a court to freeze a policy mid-case has to show, among other things, that it will suffer irreparable harm without the freeze, the requirement the D.C. Circuit treats as a necessary prerequisite for a stay. NDASA and MMJ came to show the wound that would justify that freeze, and what they produced reads like a profit-and-loss statement. The court is expected to rule on the stay in the coming weeks, and the merits will take far longer. For now, the government’s point stands on the record: the two groups that asked a court to keep marijuana in Schedule I have, by their own sworn numbers, a commercial stake in that outcome.
