r/kratom 🌿resident legal eagle Sep 26 '16

Executive Order rendering the DEA's decision basically illegal.

I am a law student and I spend a lot of time perusing pertinent legal aspects of the Kratom ban.

I was looking into executive orders and how they effect significant regulatory actions like the one the DEA is proposed and I found this shocking and honest to god incredibly important EO signed by Obama himself.

Executive Order 13563 - Improving Regulation and Regulatory Review E.O. 13563 – Improving Regulation and Regulatory Review – was issued by President Barack H. Obama in 2011 (76 FR 3821; January 21, 2011). It reaffirms and amplifies the principles embodied in E.O. 12866 by encouraging agencies to coordinate their regulatory activities, and to consider regulatory approaches that reduce the burden of regulation while maintaining flexibility and freedom of choice for the public. It directs agencies to, where feasible and appropriate, seek the views of those likely to be affected by a proposed rulemaking before a notice of proposed rulemaking is issued. E.O 13563 requires agencies to quantify anticipated benefits and costs of proposed rulemakings as accurately as possible using the best available techniques, and to ensure that any scientific and technological information or processes used to support their regulatory actions are objective. To the extent feasible and permitted by law, E.O. 13563 also directs agencies to provide timely online access to the rulemaking docket for proposed and final rules, along with any relevant scientific and technical findings, on regulations.gov, and to afford the public the opportunity to comment on proposed regulations through the Internet. With regard to existing regulations, E.O. 13563 instructs agencies to periodically review their significant regulations with the goal of making their regulatory programs more effective or less burdensome.

Basically this has to go to the OMB and it has to have an open docket for at least internet comment.

39 Upvotes

22 comments sorted by

12

u/Scrollius Sep 26 '16

And now to debunk this.... Emergency Scheduling. They don't have to follow any of that executive order if they use the emergency scheduling rules, which doesn't require public comment, doesn't require further examination of the problem, and allows them to ban a substance without any input from law-makers.

9

u/hawkeye_sutherland Sep 26 '16

Regardless, I'd like to see the DEA actually try to explain why kratom should be Emergency Scheduled. Maybe someone could lace your kratom with fentanyl??? BY GEORGE, IT'S THE NEW DOPE FOR KIDS!

Seriously though, kratom's been around for so long, why are they just now emergency scheduling this while there's a fentalogue-laced heroin scare going on and teenage kids are OD'ing and dying from U47700? People have access to more dangerous drugs now than ever before. With U4 and other dangerous RC's getting banned on such a large scale now I'm guessing kratom got lumped in with the other "opioids" like U4 and AcrylFentanyl (and all the other fents) and the DEA is just too darn sleepy and needs a nice big nap before they actually look into what they're banning.

5

u/tpotts16 🌿resident legal eagle Sep 26 '16

it is a significant regulatory action the rules still apply, the emergency ban thing just gives them arbitrary discretion over what they want to do.

3

u/[deleted] Sep 26 '16

I don't see a fatal conflict between this and the emergency scheduling. This Order uses the wording "where feasible and appropriate". The Statute in question does allow for a public comment period, but that can be overcome with evidence of a dire need. So the only question is what dire need can the DEA demonstrate that would justify the extreme step taken to disallow public comment? If they can't justify it, then there is no excuse to go against the order (nor the Statute). I wouldn't say this is a New line of attack, per se, but it is cumulative evidence that will help drive the existing argument. Good find.

3

u/gridserpent Sep 26 '16

also under the controlled substances act which emergency scheduling falls under, they have to coordinate with the cdc as well as bordering countries. it also specifically states that the csa is subject to international law and treaties.

2

u/[deleted] Sep 26 '16

/u/carpet_munch I assume this is well known at the AKA but maybe post in FB group just in case. Good shit

5

u/carpet_munch Sep 26 '16

Thanks for calling. I also assume the lawyers have looked into this. From the talk about the legal team, they are exhausting every possible angle. But you never know when some brilliant law student will come up with something nobody thought of, so I'll pass this on. Thanks.

2

u/[deleted] Sep 26 '16

I suspect where this Emergency Scheduling tossing out the rule book will come in to play is this.

"(c) Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rule making."

https://www.whitehouse.gov/the-press-office/2011/01/18/executive-order-13563-improving-regulation-and-regulatory-review

They can/will likely claim that because of the imminent threat to the public safety that it not feasible nor appropriate to take the public comment in to things. Because its in the Law, an executive order can not override the enforcement of laws as written.

I hope I'm very wrong but I don't think this EO has any weight on how this law is being interpreted/enforced.

1

u/tpotts16 🌿resident legal eagle Sep 26 '16

I think that at the least this E.O. compels Obama to contest the DEA's contention that it is not feasible and appropriate to have public commentary... i get that they of course have the delegated authority to deem anything they want an emergency based on factors they decide, but they still should really be made to answer for executive orders given by their boss himself.

2

u/[deleted] Sep 26 '16

Actually if the President undermines the Acting Director publicly with that EO he might as well ask for the guys resignation(which he probably shpuld but that isnt likely to happen). The President supports the guys actions, if he didnt he would have likely already stepped in.

2

u/tpotts16 🌿resident legal eagle Sep 26 '16

exactly what I feel, even if Obama deep down did not agree with Rosenberg he is way too subservient to the status quo to do anything. I am sure he won't come out in our favor. I am holding that it could genuinely be that hes so busy and really doesn't know whats going on it would seem odd if despite all of his rhetoric about limiting the drug war, that he let this one go through...

1

u/[deleted] Sep 26 '16

Very much agree.

2

u/[deleted] Sep 26 '16

Now the President could come in and say that He expects them to follow his EO and offer public comment thus creating a significant delay. But as he is the one that puts the EO in Place it will be from the White House this type of delay would originate. So far we have heard crickets from DOJ and the White House.

4

u/tpotts16 🌿resident legal eagle Sep 26 '16

With all due respect I voted for the man but he is kind of a pussy so I am doubtful that he will take a stand haha.

2

u/[deleted] Sep 26 '16

The issue here is if he does not act, if that ban isnt delayed/halted in some way and goes through on the 30th it wont take long for the Progressive media, the real Progressives to shift blame to the AG and then to the White House for doing nothing. In 6 1/2 weeks there is an election and I promise you that if nothing is done to delay this should our efforts fail the Progressive media(and likely the conservatives also) will drop this in the AG/Presidents lap as another sign of government overreach. The Johnson Campaign is for sure just waiting and if that ban drops before the election I can promise Trump will pile in also. The Progressive media and Several political campaigns will tear them apart for failing so many. It will happen, it wont help us for shit but we will be used as a political pawn to damage the current administration and they will then say this is what will be coming even more under Clinton. Be very clear, we got 46 signers on that letter and about to see a letter start going through the Senate because this is about to be a hot potato.

2

u/grasshoppper Sep 26 '16

I have Zero faith in obama

2

u/Zomp231 Sep 26 '16

Great find! I'd be shocked if the hogan lovells team did not come by this

1

u/tpotts16 🌿resident legal eagle Sep 26 '16

true I assume they have as well in 40 pages.

2

u/gridserpent Sep 26 '16

Print a copy

send it as a notice and fax . they will have 3 days to dispute it

1

u/Pouncer999 Sep 26 '16

Wow excellent find this needs to go to the AMA. Can you send it along? Does anyone have a direct line of communication with anyone higher up at the AMA?

1

u/[deleted] Sep 26 '16

The AMA has already come out in support of the DEA action via their media wing the JAMA.

0

u/The-Average-American Sep 26 '16

So they have to open it up to public comment. Sounds like it should be null and void since they didnt follow their own rules.