A (LOPER) BRIGHT FUTURE?: HOW THE SUPREME COURT OPENED A PATH FOR DRUG REFORM

Jack Malich
Nov 3
2 min read

Abstract:

We are witnessing a sweeping transformation of administrative law. The Supreme Court has taken aim at what it believes is a constitutional error: the power of the administrative state. All parts of the so-called “fourth branch of government” are undergoing shifts in the legal doctrines governing their structure. For those in favor of a strong administrative state, most of the Court’s new approach to agency action may represent a sinister effort to prevent the making of disfavored policy by the Executive. However, advocates of agency power would do well to remember that the administrative state can be oppressive. No agency may better represent how the “fourth branch” can harm disadvantaged populations than the Drug Enforcement Administration and its harsh regulation and punishment of psychoactive substance use in the United States. The Biden Administration decided to reevaluate the DEA’s approach to the regulation of marijuana, but the problem runs deeper than any one substance, and the Biden Administration’s efforts could easily be reversed. The Court’s remaking of administrative law offers a more permanent solution. This revolution in administrative law comes at a time when constitutional challenges to the war on drugs are unlikely to succeed. The current Supreme Court is unlikely to rule in favor of plaintiffs bringing innovative constitutional challenges to the current drug regime using the Equal Protection Clause, Free Speech Clause, or a newly unearthed freedom-of-thought. Religious liberty claims offer a promising alternative but are unlikely to provide the widespread reform that is needed. The right to use drugs is unlikely to be “deeply rooted in tradition and history” in a way the current makeup of the Court would recognize. If there is any judicial path to weakening the current drug regime, the best way forward appears to be through administrative law.