DOJ opposes the plaintiffs' challenge warning that a successful outcome could disrupt the federal government's plans to reschedule marijuana
A federal appellate court has set a date for oral arguments in a pivotal case aimed at overturning the U.S. government's prohibition on marijuana. As Marijuana Moment reported, the U.S. Court of Appeals for the First Circuit has scheduled the hearing for December 5, just three days after a separate case regarding the Biden administration's proposed rescheduling of marijuana.
The lawsuit was filed by multi-state operator Verano Holdings Corp. VRNOF, Massachusetts-based cannabis businesses Canna Provisions and Wiseacre Farm, as well as Treevit CEO Gyasi Sellers. The plaintiffs argue that the federal prohibition on marijuana, as applied to state-regulated cannabis activities, is unconstitutional.
The First Circuit's court clerk noted that the hearing would be broadcast live for public access, with no potential for delay unless there is "grave cause."
The Basis Of The Case
The companies behind the lawsuit argue that Congress has effectively abandoned its effort to eradicate marijuana, pointing to policies like the congressional budget rider that prevents federal interference in state-legal medical marijuana. They claim that these actions render the Controlled Substances Act's prohibition on marijuana unconstitutional as applied to state-regulated activities.
In an opening brief, the plaintiffs stated, "Congress has abandoned its goal of eradicating marijuana and has, in fact, expressly exempted it from federal enforcement in certain circumstances." They argue that federal laws targeting cannabis are out of step with modern legislative actions.
Industry Support And Legal Representation
Other cannabis companies, including Ascend Wellness Holdings AAWH, TerrAscend TSNDF, Green Thumb Industries GTBIF, Eminence Capital and Poseidon Investment Management, have expressed their support for the lawsuit. Industry leaders, like TerrAscend founder Jason Wild, welcomed the news of the upcoming oral arguments, expressing optimism about the case's quick progression through the courts.
The plaintiffs are represented by high-profile law firms Boies Schiller Flexner LLP and Lesser, Newman, Aleo & Nasser LLP. Notably, David Boies, chairman of Boies Schiller Flexner LLP, has a long history of high-stakes litigation, having represented clients such as the U.S. Department of Justice (DOJ) and former Vice President Al Gore.
DOJ's Response
The DOJ has argued against the plaintiffs' challenge, warning that success in this case could disrupt the federal government's plan to reschedule marijuana from Schedule I to Schedule III under the Controlled Substances Act. Department's lawyers argued that such a ruling could render Congress unable to regulate cannabis as a Schedule III substance.
DOJ also highlighted that state-legal cannabis activities, like those in Massachusetts, could fuel "marijuana tourism," attracting out-of-state visitors and affecting interstate commerce -- a central point in the government's case.
Path To Higher Courts
Earlier this year, a district court judge dismissed the case, noting persuasive reasons for reexamining federal cannabis laws but citing the Supreme Court's 2005 Gonzales v. Raich decision, which upheld federal authority over controlled substances within state borders. Despite this, attorneys for the plaintiffs anticipated that the case would advance to higher courts, and filed an appeal challenging the court decision.
The First Circuit will now decide whether to uphold the lower court's ruling or address the broader question of federal cannabis prohibition's constitutionality.
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