U.S. Supreme Court Rejects Marijuana Companies’ Case Challenging Federal Prohibition

The U.S. Supreme Court is declining to take up a case challenging the
constitutionality of federal marijuana prohibition—an issue that even one
of the bench’s more conservative members, Justice Clarance Thomas, had
previously argued must be resolved amid the state legalization movement.

The case, *Canna Provisions v. Bondi*, was on the agenda for a closed-door
meeting of the justices on Friday. On Monday, the court posted an order
list showing that the matter failed to receive the needed votes from four
justices to grant certiorari.

Massachusetts-based marijuana businesses had asked the court to take their
case because they argued that federal law unconstitutionally prohibits
intrastate cannabis activity, contravening the Commerce Clause.

That issue was raised in amicus briefs filed by supporters of the suit over
recent weeks. That includes a public interest law firm representing a man
who says federal law infringed on his property rights, libertarian think
tank the Cato Institute and the Koch-founded Americans for Prosperity
Foundation.

The powerhouse law firm Boies Schiller Flexner LLP submitted their petition
for writ of certiorari from the court on behalf of their cannabis industry
clients in October, and the Justice Department subsequently declined the
opportunity to file a brief for or against the case’s consideration by the
justices.

A lead attorney representing the petitioners previously told Marijuana
Moment that he was “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.”

Schiller did not immediately respond to a request for comment from
Marijuana Moment about the court’s action on Monday.

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.

One of the court’s justices, Thomas, said in 2021 that the federal
government’s inconsistent approach to marijuana policy ought to be resolved,
suggesting that outright national prohibition may be unconstitutional.

“Once comprehensive, the Federal Government’s current approach is a
half-in, half-out regime that simultaneously tolerates and forbids local
use of marijuana,” Thomas said at the time.

“This contradictory and unstable state of affairs strains basic principles
of federalism and conceals traps for the unwary,” he said, adding that
“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.”

Thomas’s comments seemed to suggest it’d be appropriate revisit the
precedent-setting case, *Gonzales v. Raich*, where 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.

The initial complaint in the current case, 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.”


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At oral arguments on appeal late last year, attorney 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 handling the case, 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, in October 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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