In an appeal with national implications, a petition has been filed with the U.S. Supreme Court, demanding that the federal statute criminalizing marijuana, the Controlled Substances Act (CSA), be declared unconstitutional.
The case, Washington v. Barr, was brought on behalf of five plaintiffs, including 14-year-old legalization activist Alexis Bortell, Iraq War Veteran Jose Belen, and nine-year old Jagger Cotte — three plaintiffs whose treatment with cannabis keeps them alive.
Alexis, Jagger and Specialist Belen, who must carry their medical cannabis with them at all times, cannot legally enter onto federal land and cannot travel by air or other federally-regulated modes of transportation. Worse, they live in constant fear that their medication may someday be taken from them and that they (or, in the cases of Alexis and Jagger, their parents) will be arrested. Despite that it’s legal in 38 States and U.S. Territories, and that many of those states have deemed cannabis businesses essential during the pandemic, cannabis remains illegal under the CSA. This has created substantial confusion not only for these plaintiffs, but also for the millions of registered cannabis patients throughout the country, not to mention the doctors who prescribe, and the businesses that supply, their medication. According to Lauren Rudick, co-counsel for the plaintiffs, “there was hope in the cannabis industry that marijuana would be de-scheduled by the Trump administration.” However, despite his 2016 campaign promises to leave the issue of legalization to the States, President Trump and the Justice Department have aggressively defended the CSA and opposed this lawsuit, and have made no progress toward legalization or decriminalization.
The legal premise for the lawsuit is that the classification of cannabis under the CSA as a Schedule I drug is unconstitutionally irrational and violates plaintiffs’ fundamental rights to equal protection under the law, substantive due process and to preserve their health and lives through treatment with lifesaving medication. The nearly 100-page complaint points out that, in order to be classified a Schedule I drug under the CSA, a substance must be found to have no accepted medical applications in the U.S., and be too dangerous to treat with even under medical supervision. Yet, over 70% of U.S. jurisdictions have legalized cannabis for use in medical treatment, rendering the federal government’s position that there is no accepted medical use for cannabis in the U.S., according to plaintiffs, utterly irrational.
SCOTUS is the final hurdle the plaintiffs must clear to obtain the relief they seek. The lawsuit was initially brought in the Southern District of New York. Although acknowledging in the court record that cannabis had “saved [plaintiffs’] lives,” the District Court Judge dismissed the case, ruling that the plaintiffs, before moving forward with their lawsuit, must submit a special petition to the Drug Enforcement Administration (DEA), requesting that cannabis be de-scheduled administratively. The Second Circuit Court of Appeals, in a decision hailed by Law360 as a possible “turning point” in the legalization effort, reinstated the complaint – the first time ever a complaint seeking de-criminalization of cannabis under the CSA has survived dismissal. However, the Appeals Court proceeded to rule, consistent with the District Court, that the complaint would be held in abeyance pending the plaintiffs’ submission of a de-scheduling petition with DEA. The DEA, in turn, was directed by the Court to promptly respond to an administrative petition.
Notwithstanding the Second Circuit’s ruling, the DEA and D.C. Circuit have consistently ruled since 1977 that filing a de-scheduling petition of the sort directed by the Second Circuit and the District Court would be futile, since cannabis cannot be de-scheduled administratively or even be re-classified any lower than Schedule II under the CSA. In other words, the plaintiffs were directed to proceed with an administrative review process doomed to failure. Accordingly, they filed their petition with SCOTUS.
Michael Hiller, lead counsel for the plaintiffs and a former Professor of Constitutional Law whose law firm, Hiller, PC, is handling the case pro bono, is hopeful that SCOTUS will accept jurisdiction of the appeal, even though few such petitions are granted by the Court. In particular, Hiller pointed to the “mass uncertainty” in the law governing cannabis, “the conflicting decisions among the courts,” “the millions of Americans who depend on medical cannabis to keep themselves healthy and alive,” and the “tens of billions of capital invested by cannabis businesses throughout the country to mass produce a product, the legality of which is completely unclear.”
Joseph Bondy, pro bono co-counsel for plaintiffs, commented: “We are particularly proud to see the unification of the cannabis legalization movement behind this petition, as evidenced by the dozen or more organizations and the members of Congress who we expect will be seeking leave to file ‘friend of the Court’ amicus briefs in support of plaintiffs’ petition.” A decision on the petition isn’t expected until next year.