Attorney Suing Feds Over Marijuana Prohibition Is ‘Hopeful’ The Supreme Court Will Take Up The Case

A lead attorney representing marijuana businesses in a case that’s pending
consideration by the U.S. Supreme Court says he’s “hopeful”—albeit somewhat
“nervous”—about the prospect of justices taking up the matter and
ultimately deciding to address a key legal question about the
constitutionality of federal cannabis prohibition.

Last month, the powerhouse law firm Boies Schiller Flexner LLP submitted a
petition for writ of certiorari on behalf of their clients, who are arguing
that the Commerce Clause of the U.S. Constitution precludes the federal
government from enforcing criminalization laws against intrastate cannabis
activity.

Massachusetts-based marijuana companies and industry leaders Canna
Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings are asking
justices to reevaluate a landmark 2005 case, *Gonzales v. Raich*, wherein
the Supreme Court narrowly determined that the federal government could
enforce prohibition against cannabis cultivation that took place wholly
within California based on Congress’s authority to regulate
interstate commerce.

Attorney Josh Schiller and his partners see an opening for another landmark
case that could help unfurl the convoluted state-federal marijuana policy
conflict.

“Time is of the essence,” Schiller told Marijuana Moment on Thursday,
noting the dramatic shift in public opinion and state laws governing
cannabis. “We think that this is the right time for this case because of
the need—the industry needs to get relief from federal oversight at the
moment.”

A U.S. appeals court rejected the arguments of the state-legal cannabis
companies the firm is representing in May. It was one the latest blows to
the high-profile lawsuit following a lower court’s dismissal of the claims.
But it’s widely understood that the plaintiffs’ legal team has long
intended the matter to end up before the nine high court justices.

Four justices must vote to accept the petition for cert in order for the
court to take up the case, though the next step is for the Department of
Justice to file its initial brief, currently due by November 28.

Schiller spoke to Marijuana Moment about his expectations for the cannabis
case, why justices might be inclined to take it up and more. The following
interview has been lightly edited for length and clarity.
Marijuana Moment: Why do think now is the right time to be pursuing this
case with SCOTUS?

*Josh Schiller:* I think that, in the last 25 years, this decision [*Gonzales
v. Raich*] has been sort of hanging around as an outlier—and I think that
that’s captured in our petition. If you read it, I think we’ve strongly
advocated as to why this decision was an outlier, and the reason to take it
now is, frankly, because of the remarkable growth of the industry.

And not only do we think that this court may find that decision was wrongly
decided at the time it was decided, the court may also decide that a
different test or constitutional analysis should be applied. And then we
just think that the facts and the stigma on weed is just gone.
Generationally speaking, it’s gone. Thirty-eight states and more have it
legally. It’s an accepted product that’s safely regulated within states,
and that’s consumed by, frankly, I would think, more than half of the
country.

Time is of the essence. Our country believes weed is safe—no longer
believes it’s stigmatized, or a so-called gateway drug. I was always taught
that the Supreme Court often evolves with with our culture, and old norms
and misconceived notions drift away as our culture evolves, and we think
that this is the right time for this case because of the need—the industry
needs to get relief from federal oversight at the moment.
*MM: What gives you confidences that justices will ultimately take up the
case?*

*JS:* If you’re going to use a word like ‘confidence,’ then I’m more
nervous than I am confident, to be honest. We’re ‘hopeful’ is the word I
would use.

We think, intellectually, we’ve raised a valid argument—and we think,
intellectually, we’ve put together a case that allows the court to overturn
that prior decision and to really get rid of an outlier case involving a
really, really important area of the Constitution.

And obviously there are all kinds of things going on right now in our
country that are, frankly, unprecedented in terms of the use of executive
power. It’s kind of ironic. When we filed this case, we didn’t expect that
liberal governors and attorneys general all over the country would be
filing suit after suit after suit to get rid of federal power in their
inner cities. But that’s what’s going on. So, you know, maybe this gets the
attention of all nine justices.

Regardless, we’re hopeful that the ideological core of the conservative
group that is the majority of the court still considers federalism to be a
really important area of of our constitutional analysis and application of
those principles that our founders held so so highly—and the interplay
between the federal police power and the states to regulate themselves is
one of the most important cornerstones of the Constitution.

This case is saying, ‘look, let’s re-examine how we’ve had jurisprudence on
this issue in the past, and let’s correct it, because a bad decision has
had an impact for the last 10 years on this industry, and this complaint
helps demonstrate that.
*MM: If the Trump administration moves forward with a marijuana
rescheduling proposal, how might that impact your case?*

*JS:* That wouldn’t change the importance, intellectually speaking, of our
argument about the fundamentals of this cornerstone principle of the
Constitution—the Commerce Clause—I don’t think it would impact their
decision to take the case on it at all.

It will obviously give the industry relief. If it was so terrible how it
was rolled out so slowly—and the last administration did nothing to get it
done, which is terrible—my expectation is that this administration is just
going to do nothing, too.

It’s quite unfortunate, because if you think about it, it’s a bipartisan
issue now. It’s not a red state or a blue state issue at all. And it should
be one of those things where Congress or the administration acts quickly
and changes something that’s having a bad impact. It shocks me that that
hasn’t happened, but I’m hopeful that it will—but I don’t think, even if it
were to happen, it would have an impact.

*MM: SCOTUS has recently accepted a case concerning the federal ban on gun
ownership by people who use marijuana. Do you consider that encouraging
with respect to the likelihood justices will accepts yours too? *

*JS:* The suggestion is that they’re going to overturn [the ban] by taking
it, right? Which has wild implications in our case if they think that that
shouldn’t matter, when it interferes with your constitutional right to
carry a gun, that’s also a constitutional principle, and they’re also
rejecting the idea of a federal police power.

But then again, unfortunately, the Second Amendment in our country has
many, many decisions over the years that I generally disagree with. They
seem outcome-driven, as opposed to being logical. It’s hard to say that it
has as much, or anything, to do with weed as it has to do simply with the
principles of the Second Amendment

*MM: The plan all along was to get this case to the Supreme Court after
appealing lower court rulings that didn’t go in your favor. Can you speak
to that strategy?*

*JS:* I wouldn’t say we ever intended to lose a case. Our hope was to get
to the Supreme Court to have an opportunity to overturn the prior case, and
now we’re there.

We thought we got a fair opportunity in the district court to make a
record, which we did. Now that record is coming up on appeal. It’s kind of
an efficient strategy, because instead of going through discovery and
months and months and years of litigating a case, we went straight to the
appeals court. So we got here much faster than we, frankly, expected to—and
we got a good record out of it.

So we were very thankful that we were able to make a record in the district
court, make a record in the appeals court and now have our opportunity to
very efficiently argue the merits of overturning *Gonzales v. Raich.*

*Photo courtesy of Philip Steffan.*

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