Anderson, Feinberg and Mulligan, Circuit Judges.
Appellants John Kiffer, James Kehoe and Robert Harmash mount a broadside attack on the constitutionality of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("the Act"), 21 U.S.C. § 801 et seq., as it applies to marihuana. Appellants were arrested in December 1971, while in possession of approximately two tons of marihuana stored in a warehouse, part of which Kiffer was in the process of delivering by truck to a police informant. All three were indicted for possession of marihuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy, in violation of 21 U.S.C. § 846. They were tried in October 1972 before Judge Leo F. Rayfiel and a jury in the United States District Court for the Eastern District of New York. Kiffer and Harmash were convicted on both counts, and Kehoe was convicted on the possession count.*fn1
Appellants make two claims -- that the criminalization of marihuana is unconstitutional and that, even if this is not so, the classification of marihuana as a Schedule I controlled substance, 21 U.S.C. § 812(c), Schedule I(c)(10), is irrational and arbitrary. As indicated below, the first issue is not before us in the broad form presented. What is before use is the question whether there is a constitutional right to sell marihuana in large quantities, obviously for profit. As to that, we answer no. As to appellants' second argument, we hold that Congress has not acted irrationally. For these reasons, we affirm the judgments of conviction.
Before considering the merits of the constitutional arguments, we must deal with a preliminary question. The Government urges that appellants be precluded from challenging either the inclusion of marihuana under the Act or its Schedule I classification because they have failed to exhaust an available administrative remedy.
The remedy adverted to is a procedural feature of the Act added, presumably in part, because the state of scientific knowledge regarding the effects of many of the substances controlled is far from definitive. The Act covers a large number of substances, each of which is assigned to one of five schedules; this statutory classification determines the severity of possible criminal penalties as well as the type of controls imposed.*fn2 However, under section 811 of Title 21, the Attorney General is empowered to add substances to, or remove substances from, the coverage of the Act, as well as to transfer substances between schedules, all based upon findings that the statutory criteria warrant such modification.*fn3 Proceedings preliminary to such changes "may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary [of Health, Education, and Welfare], or (3) on the petition of any interested party." 21 U.S.C. § 811(a). See 21 C.F.R. §§ 308.41-.48. Prior to such a proceeding, the Attorney General is required to obtain an evaluation from the Secretary of Health, Education, and Welfare (HEW), whose recommendations as to "scientific and medical" questions are binding upon the Attorney General. 21 U.S.C. § 811(b). Thus, if new information indicates that the original classification was incorrect or is no longer justified under the statutory criteria, an interested party can, at least in theory, seek a reconsideration of the coverage or classification. Citing the expertise of the Attorney General and of HEW and the need for effective enforcement of the drug laws, the Government stresses that appellants have not used this imposing corrective mechanism; the Government urges that appellants should therefore be estopped from attacking either the constitutionality of including marihuana as a controlled substance at all or the reasonableness of its classification in Schedule I.
We put to one side the obvious rejoinder that the administrative agency (here HEW and the Attorney General acting in concert) does not have the power to declare the Act unconstitutional. Whatever weight such an argument might have in the usual case, timely and successful use of this administrative remedy would have obtained for appellants the very relief they seek from us -- a declaration either that marihuana should not be subject to the Act or that it should be covered only in another schedule carrying lesser penalties.
Nevertheless, we reject the Government's argument for two reasons. First, there is some doubt whether appellants in fact have an administrative remedy at the present time. The procedures just described for controlling and classifying must be read in conjunction with 21 U.S.C. § 811(d), which applies to any substance that the Single Convention on Narcotic Drugs, March 30, 1961,  18 UST 1407, T.I.A.S. No. 6298 (ratified by United States in 1967), requires to be controlled.*fn4 The Director of the Bureau of Narcotics and Dangerous Drugs -- the Attorney General's designated agent for this purpose, 28 C.F.R. § 0.100 -- has taken the position that marihuana is covered by the Convention, see 18 UST at 1410-11, 1559; as a consequence, he has refused to reconsider the marihuana classification pursuant to a petition of an interested party. 37 Fed.Reg. 18097-98 (1972), appeal pending sub nom. National Organization for the Reform of Marijuana Laws v. Ingersoll, 162 U.S.App.D.C. 67, 497 F.2d 654 (D.C. Cir. 1974) [Remanded]. Petitioners in that case are vigorously asserting that the Director is in error. We take no position as to that, but it appears now that the administrative route for these appellants would at best provide an uncertain and indefinitely delayed remedy. Second, even assuming the existence of a viable administrative remedy, application of the exhaustion doctrine to criminal cases is generally not favored because of "the severe burden" it imposes on defendants. McKart v. United States, 395 U.S. 185, 197, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). The burden would be particularly harsh in this case, as appellants' remedy is now so uncertain.
Having disposed of this preliminary question, we turn to the arguments addressed to the constitutionality of the statute.
Any court asked to undertake review of the multifarious political, economic and social considerations that usually underlie legislative prohibitory policy should do so with caution and restraint. In this case, the challenged legislation incorporates conclusions or assumptions concerning an array of medical, psychological and moral issues of considerable controversy in contemporary America. Indeed, as a recent perceptive study suggests, "Marijuana, in fact, has become the symbol of a host of major conflicts in our society, each of which exacerbates any attempt at a rational solution to the problem." J. Kaplan, Marijuana -- The New Prohibition 3 (1970). This should serve as a reminder that in most instances the resolution of such sensitive issues is best left to the other branches of government.
Reflecting this judgment, courts usually review challenged legislative acts with the understanding that they are presumed valid and will be so found unless it is shown that the statute in question bears no rational relationship to a legitimate legislative purpose. E.g., Williamson v. Lee Optical, Inc., 348 U.S. 483, 485-488, 75 S. Ct. 461, 99 L. Ed. 563 (1955); United States v. Carolene Products Co., 304 U.S. 144, 152-154, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). The only cases that require a stricter standard of review are those that involve an infringement of a right explicitly enunciated in the Constitution or otherwise recognized as fundamental. E.g., Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 505-514, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964). See United States v. Carolene Products Co., supra, 304 U.S. at 152-153 n. 4, 58 S. Ct. 778, 82 L. Ed. 1234.
To invoke this stricter scrutiny in this case, appellants assert the existence of a fundamental "right of the individual to control of his own body and to indulge in private in what may be condemned in public or deemed immoral or unacceptable to society at large." In support of this proposition they cite the Supreme Court decisions in Griswold v. Connecticut, supra, and Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), respectively invalidating convictions for use of contraceptives and for private possession of obscene materials. These cases are of little assistance to appellants. Whatever may be the merits of a claim to a protected right by one who is prosecuted for the private possession or use of marihuana, appellants are not in that position. They stand convicted, not of simple possession or use of marihuana, see 21 U.S.C. § 844(a), but rather of possession of two tons of it with intent to distribute, and of conspiracy to do so. Thus, analogies to the holdings of Griswold and Stanley are inappropriate. Far more comparable are those decisions holding that, notwithstanding Stanley's protection of the ultimate consumer ...