ASA is suing the Department of Health and Human Services over statements it has disseminated regarding the medical value of marijuana. The fact that this suit is over medical marijuana is incidental to the larger issue here, the ability of the citizenry to force the government to acknowledge scientific truth. The law at issue in this case is The information quality act (pdf).

(a) IN GENERAL. — The Director of the Office of Management and Budget
shall, by not later than September 30, 2001, and with public and Federal agency involvement issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act.

(b) CONTENT OF GUIDELINES. — The guidelines under subsection (a) shall
(1) apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies; and (2) require that each Federal agency to which the guidelines apply (A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the agency by not later than 1 year after the date of issuance of the guidelines under subsection (a); (B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and (C) report periodically to the Director (i) the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency; and (ii) how such complaints were handled.

The Information Quality Act came into being without hearings or debates and no committee reports. The language was simply inserted as Section 515 of the more than 700-page Treasury and General Government Appropriations Act for Fiscal Year 2001. Its purported purpose is to do as the ASA is doing, correct bad information put out by the government. However some, like defendingscience.org have charged that the act is little more than a way to allow industry to obscure legitimate scientific information.

Petitions for correction must first be submitted to the agency responsible. If the petition for a correction of faulty information is denied that decision is appealable within the the federal agency who made the denial. However, there is a debate about whether or not the ultimate agency decisions are subject to judicial review. If the act and its decisions are subject to judicial review then there may be an increase in suits like the ones advanced by the ASA over the failure of a federal agency to properly respond or correct disseminated information.

That is what the current ASA appeal, brief available here in pdf, is about. The district court held that the act was not subject to judicial review because of a lack of legislative history indicating congress intended for the decisions of the agencies under the IQA are reviewable. The ASA is appealing and arguing based on some strong precedent dealing with the APA that agency decisions, such as the ones at issue here, are reviewable.

If you decide to read the ASA brief they make a strong positivist, textualist case. The Brief uses the case law very effectively to argue for the judicial review of IQA decisions. However the result may not be as straightforward as the ASA's case law would indicate. There are strong policy reasons why the courts would be reluctant to get involved with the decisions of administrative agencies. In their writeup the LAT has this quote,

Justice Department lawyer Alisa Klein told the appeals court panel that the government shouldn't be forced to defend the accuracy of "countless pieces of information" in its massive archives. U.S. Circuit Court Judge Marsha S. Berzon, an appointee of President Clinton, said the law at issue in the case was "amazing" because it did appear to require the government to correct all inaccurate statements, a result she called "troubling."

Many cases at the appellate level are decided on the policy and practical considerations that they bring. The 9th circuit may be reluctant to force the government to spend the resources required to defend the accuracy of every piece of information that it disseminates in court. this could end up costing a great deal in time and resources for both the agencies tasked with this defense and for the courts themselves in presiding over the reviews. Also, the courts are reluctant to second guess the decisions of administrative agencies under a theory that the agencies are far more competent than the judiciary to decide what is and is not accurate information.

So policies of judicial competency and judicial economy face off against strong stare decisis and the value of truth in government information. The court may well not decide on the issue of whether the information presented is accurate if they decide judicial review is not available. This might seem to be a strange result given the clear inaccuracy of the information at issue and the seeming ease of telling the government to correct it. In the end i believe that the ninth circuit will affirm the lower courts ruling and deny a private cause of action and judicial review to decisions made under the IQA.

cross posted at Gaucho Politico