In Whitman v. American Trucking Associations 531 U.S. 457, 121 S.Ct. 903 U.S., 2001, Justice Thomas, noting that the decisions of the Supreme Court have strayed from the intent of the Founding Fathers when they wrote the Consitution, has invited a challenge to the practice, which in its execution has crossed the line. CASE 0:10-cv-04944-PJS-LIB Document 18 Filed 01/18/11 Page 18 of 22 Page 19 of 22 The action of the DEA, using 21 U.S.C. Section 811 (h) in the instant case, without bothering to even collect scientific data much less address the defined “problem” through the Analog Act, has crossed the line. The DEA is legislating, without affording citizens Due Process of the Law, in violation of the Separation of Powers, and must be stopped.

After hearing and substantial briefing and argument, Judge Randa found and held the following: 1. On May 16, 2013, the DEA issued a final order to temporarily schedule UR- 144 pursuant to the temporary scheduling provisions of the Controlled Substance Act 21 U.S.C. §811(h); 2. The overwhelming weight of opinion in the scientific community is that the chemical structure of UR-144 is not substantially similar to the chemical structure of JWH-018; 3.

The CSA makes it unlawful to “manufacture, distribute, dispense, or possess any controlled substance.” Gonzales v. Raich, 545 U.S. 1, 13 (2005) (citing 21 U.S.C. §§ 811 and 812). The CSA also makes it illegal to profit from the manufacturing or sale of marijuana.

20 By contrast, the Controlled Substances Act (“CSA”) expressly provides that another agency shall give binding guidance to the Attorney General. See 21 U.S.C. § 811(b) (“The recommendations of the Secretary to the Attorney General [concerning which substances shall be covered by the CSA] shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug[.]”).

Destruction, seizure or use for a military purpose. QBPL-0311-FL (01-14) Page 1 of 2 Case 6:16-cv-00831-GAP-KRS Document 44-2 Filed 01/12/17 Page 25 of 45 PageID 743 Discharge of a nuclear weapon will be deemed a warlike act even if accidental; F. Communicable Disease There is no coverage for Bodily Injury or Property Damage which arises out of the transmission of a communicable disease by You; G. Sexual Molestation, Corporal Punishment Or Physical Or Mental Abuse This Policy does not cover Bodily Injury or Property Damage arising out of sexual molestation, corporal punishment or physical or mental abuse; H. Controlled Substance This Policy does not cover Bodily Injury or Property Damage arising out of the use, sale, manufacture, delivery, transfer or possession by any person of a Controlled Substance as defined by the Federal Food and Drug Law at 21 U.S.C.A. Sections 811 and 812. Controlled Substances include but are not limited to cocaine, LSD, marijuana and all narcotic drugs.

Section 201(h) of the Act authorizes the Attorney General to temporarily schedule a substance when “necessary to avoid an imminent hazard to the public safety.” 21 U.S.C. § 811(h). Touby recognized that section 201(h)’s “imminent hazard” to the public safety standard provision supplied the necessary intelligible principle and was a sufficient restriction of the Attorney General’s discretion to “satisfy the constitutional requirements of the non-delegation doctrine.”

Section 201(h) of the Act authorizes the Attorney General to temporarily schedule a substance when “necessary to avoid an imminent hazard to the public safety.” 21 U.S.C. § 811(h). Touby recognized that section 201(h)’s “imminent hazard” to the public safety standard provision supplied the necessary intelligible principle and was a sufficient restriction of the Attorney General’s discretion to “satisfy the constitutional requirements of the non-delegation doctrine.”

Just the opposite, the CSA is replete with examples of Congress having extended agencies considerable discretion in the CSA. See, e.g., 21 U.S.C. §§ 811 (discretion to initiate rulemaking to add or remove substances falling within Act), 822 (waiver of registration requirements), 828 (Attorney General’s discretion to direct style of order forms). Moreover, Heckler specifically reminds courts that they “generally will defer to an agency’s construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute.”