United States v. Nasir

Pursuant to the Controlled Substances Act (CSA), drugs having a potential for abuse may be classified into five schedules depending on the threat the drugs pose to public safety. The Drug Enforcement Agency (DEA) may “control” a drug by adding it to one of the schedules pursuant to the administrative rulemaking process. An amendment to the CSA, codified at 21 U.S.C. § 811(h), provides for the temporary scheduling of drugs on an emergency basis to avoid an imminent hazard to public safety. On March 1, 2011, the DEA scheduled the substance JWH-018 on an emergency basis. Generally, 5 U.S.C. § 801 of the Congressional Review Act (CRA) requires federal agencies to submit regulations to Congress and the Comptroller General for review before they take effect. However, the DEA relied on an exception to the CRA’s procedural requirements to avoid delay. Notwithstanding the DEA’s reliance on the exception, the DEA provided notice to both houses of Congress and the Comptroller General. A group of drug dealers (defendants) were indicted for distribution of drug analogues of JWH-018. The drug dealers moved to dismiss the indictment, arguing that they could not be held criminally liable for distribution of JWH-018 because the DEA failed to comply with the CRA, thereby rendering the rule scheduling JWH-018 ineffective. The United States (plaintiff) argued that it did in fact comply with the CRA by providing notice to Congress and the Comptroller General. The United States alternatively argued that 5 U.S.C. § 805 of the CRA precluded judicial review of the DEA’s compliance with the CRA.