Trump DOJ Declines To File Supreme Court Brief In Marijuana Companies’ Case Challenging Federal Prohibition

The Justice Department is declining the opportunity to file a brief on
whether the U.S. Supreme Court should take up a case from marijuana
businesses that are challenging the constitutionality of federal
prohibition.

In a filing submitted to the court on Monday, U.S. Solicitor General D.
John Sauer, who was appointed by President Donald Trump, said simply: “The
Government hereby waives its right to file a response to the petition in
this case, unless requested to do so by the Court.”

This comes about a month after the powerhouse law firm Boies Schiller
Flexner LLP submitted a petition for writ of certiorari from the court on
behalf of their clients—a coalition of cannabis companies—who are arguing
that the Commerce Clause of the U.S. Constitution precludes the federal
government from enforcing criminalization laws against intrastate marijuana
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.

A lead attorney representing the plaintiffs recently told Marijuana Moment
that he’s “hopeful”—albeit somewhat “nervous”—about the prospect of
justices ultimately taking up the matter and deciding to address the key
legal question about the constitutionality of federal cannabis prohibition.

“Time is of the essence,” Josh Schiller said, 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.”

The petition companies’ petition to SCOTUS argues that the Raich decision
was “an aberration” in the court’s precedents on the Commerce Clause and
Necessary and Proper Clause, and represents “a drastic departure from the
federalism principles those clauses embody.”

The ruling two decades ago permitted a “dramatic intrusion on the exercise
of the States’ police powers,” it says.

The Controlled Substances Act’s (CSA) “significance to the exercise of the
States’ police powers is massive and even greater today than it was in
Raich’s time, when only nine states had legalized marijuana,” the petition
says. “Thirty-eight states have now decided that the health and safety of
their citizens is better served by making marijuana available through
regulated channels than through prohibition. The CSA displaces those
states’ choices and imposes Congress’s own views on intrastate policy. The
serious federalism questions raised by that intrusion warrant the Court’s
attention now, as they did in Raich.”

The petition says that after the Raich decision was issued, the federal
government has “undermined the notion of any link between the CSA’s
interstate goals and its intrastate prohibitions.”

“Since 2014, Congress has barred enforcement against state-regulated
medical marijuana but not adult-use marijuana (while leaving both
prohibited under the CSA). State-regulated medical marijuana is therefore
less regulated, from a federal perspective, than the least-controlled
Schedule V substances in the CSA. The DOJ has taken non-enforcement even
further, with a policy of not enforcing the CSA as to either
state-regulated medical or adult-use marijuana… This long period of
desuetude has severed any link between controlling state-regulated
marijuana and regulating interstate commerce, thereby rendering the CSA’s
intrusion on the States’ policymaking even more stark.”

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. The next step would have been for the Department
of Justice to file its initial brief, which had a due date of November 28.
It remains to be seen if the court will end up requesting a brief from the
government now that it has declined to do so on its own accord.

While it is not clear if SCOTUS will ultimately take the case, one sign
that at least some on court might be interested in the appeal is a 2021
statement from Justice Clarence Thomas, issued as the court denied review
of a separate dispute involving a Colorado medical marijuana dispensary.

Thomas’s comments at the time seemed to suggest it’d be appropriate revisit
*Raich*—a move that could upend federal prohibition.

The statement pointed to policy developments since the earlier case was
decided, such as the hands-off enforcement approach taken by the Department
of Justice as more states legalized cannabis and a congressional budget
rider protecting state-legal medical marijuana programs.

“Whatever the merits of *Raich* when it was decided, federal policies of
the past 16 years have greatly undermined its reasoning,” Thomas wrote,
describing the government’s approach to cannabis enforcement as “a half-in,
half-out regime that simultaneously tolerates and forbids local use of
marijuana.”

“Though federal law still flatly forbids the intrastate possession,
cultivation, or distribution of marijuana…the Government, post-*Raich*, has
sent mixed signals on its views,” the justice continued, saying the
situation “strains basic principles of federalism and conceals traps for
the unwary.”

The initial complaint in the current case now known as *Canna Provisions v.
Bondi*, filed in U.S. District Court for the District of Massachusetts,
argued that government’s ongoing prohibition on marijuana under the
Controlled Substances Act (CSA) was unconstitutional because Congress in
recent decades had “dropped any assumption that federal control of
state-regulated marijuana is necessary.”

At oral argument on appeal late last year, David Boies told judges that
under the Constitution, Congress can only regulate commercial activity
within a state—in this case, around marijuana—if the failure to regulate
that in-state activity “would substantially interfere [with] or undermine
legitimate congressional regulation of *inter*state commerce.”

Boies, chairman of the firm, has a long list of prior clients that includes
the Justice Department, former Vice President Al Gore and the plaintiffs in
a case that led to the invalidation of California’s ban on same-sex
marriage, among others.

Judges, however, said they were “unpersuaded,” ruling in an opinion that
“the CSA remains fully intact as to the regulation of the commercial
activity involving marijuana for non-medical purposes, which is the
activity in which the appellants, by their own account, are engaged.”

The district court, meanwhile, said in the case that while there are
“persuasive reasons for a reexamination” of the current scheduling of
cannabis, its hands were effectively tied by past U.S. Supreme Court
precedent in *Raich*.

This comes in the background of a pending marijuana rescheduling decision
from the Trump administration. President Donald Trump said in late August
that he’d make a determination about moving cannabis to Schedule III of the
CSA within weeks, but he’s yet to act.

Meanwhile, last month the Supreme Court agreed to hear a separate case on
the constitutionality of a federal law prohibiting people who use marijuana or
other drugs from buying or possessing firearms. The Trump administration
has argued that the policy “targets a category of persons who pose a clear
danger of misusing firearm” and should be upheld.

*Photo elements courtesy of rawpixel and Philip Steffan.*

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