“Irrational and Archaic:” Advocates Push Supreme Court to Act on Cannabis

By Willis Jacobson
Sep 15, 2020

A wide-ranging group that includes the nation’s largest cannabis trade association, a major investment group, military veterans, children with medical conditions and ex-professional athletes has taken its fight to decriminalize marijuana to the U.S. Supreme Court.

Nine separate groups, all representing people who’d be impacted by federal decriminalization, filed amicus briefs with the high court over the past week. They’re calling for the high court to grant a writ of certiorari, or further review, of a lower court’s April decision that petitioners must first exhaust administrative appeals with the U.S. Drug Enforcement Administration before they can ask the courts to rule on the constitutionality of marijuana’s status as a Schedule I drug.

Although each brief offers its own argument, they all reach the same conclusion: That marijuana should be removed from the Controlled Substances Act(CSA) and that the DEA has shown itself to be unwilling or incapable of doing so.

Ian Stewart, an attorney with Wilson Elser, which filed a brief Monday on behalf of the National Cannabis Industry Association, which represents tens of thousands of industry professionals, and The Arcview Group, which bills itself as the industry’s largest investor network, said he felt “cautiously optimistic” that this latest push could lead to real, substantive change.

If the Supreme Court grants a writ of certiorari, he noted, the petitioners will be able to appeal to the nine justices, and the solicitor general of the U.S. will have to defend the government’s position that there is no medical benefit to cannabis and that it is unsafe even when used under the guidance of a physician.

The position “is absurd, and nobody would agree with that who has looked at it,” Stewart said. “So, I think that’s a challenge for them.”

“Unwilling but also incapable”

The briefs were filed in support of the plaintiffs in Washington v. Barr, a case pitting a group of cannabis advocates, led by former Super Bowl-winning NFL player Marvin Washington, against U.S. Attorney General William Barr. The plaintiffs seek to overturn the classification of cannabis as a Schedule I drug.

The brief filed by the Wilson Elser firm argues that a Second Circuit ruling calling for administrative remedies with the DEA violates the Due Process Clause of the Constitution’s Fifth Amendment. Further, it argues, adhering to the lower court ruling leaves the group of petitioners “facing substantial prejudice from an unreasonable and indefinite time frame for administrative action” by the DEA.

The DEA “continues to maintain an irrational and archaic position on the scheduling of cannabis that is out of step with sweeping medical, scientific, legal and social advances,” read a portion of the brief. “Although the Second Circuit expressed its concern over agency delay, the Court failed to recognize that DEA is not only unwilling but also incapable of providing the remedy sought by the Petitioners, making exhaustion futile and inappropriate.”

A separate brief filed by attorneys representing the International Cannabis Bar Association, which has more than 700 lawyer members, referred to the CSA as “constitutionally repugnant” and alleged that the DEA has shown a “decades-long pattern of bias and animus” regarding enactment of the CSA.

The filing noted that there is a “long and unsuccessful history of petitions to reschedule cannabis, as well as the anti-cannabis bias of the DEA, its leaders past and present,” and former attorneys general.

Various individuals and groups have attempted to appeal to the DEA over the past several decades, and those appeals have generally been time-consuming and expensive. Perhaps most importantly, they have all failed.

“As recently as 2016, DEA reiterated its long-standing but flawed position that it cannot legally classify cannabis anywhere but Schedule I of the CSA, or potentially Schedule II,” read a section of the Wilson Elser brief.

That latter hypothetical is especially worrisome for those pushing for decriminalization.

‘Industry-killing effect’ 

The DEA has maintained for years that, due to international treaties, it is unable to support a complete removal of marijuana from the CSA. That leaves reclassification as the DEA’s lone option, but a move to Schedule II status could place cannabis under the prescription drug model utilized by other Schedule II substances that are administered medically, such as oxycodone, fentanyl, Adderall and Ritalin.

Stewart did not hold back when describing the potential effects of marijuana joining that list.

“It would have an absolute disastrous, industry-killing effect,” he said. “It would destroy every medicinal and adult-use market that exists, so that can’t happen.”

If the Supreme Court were to grant a writ of certiorari, Stewart said he is confident the merits of the case would lead to a reversal of the Second Circuit ruling. If that were to happen, the sides would then have the opportunity to make their case for declassification before a federal judge in the Southern District of New York.

That process could take two years or more – particularly if the COVID-19 pandemic continues – to play out, according to attorneys involved in the case.

Other entities who have thrown their support behind the plaintiffs in the Washington case include the Last Prisoner Project, Americans for Safe Access, NORML, and the Minority Cannabis Business Association.

While the Washington v. Barr case could lead to major impacts down the road for the legalization effort, Stewart, citing the growing support for decriminalization, said its most important ramifications might come from outside the courtroom.

“Ultimately, marijuana shouldn’t be an issue for the courts; it’s a legislative issue, it’s a political issue,” he said. “Congress needs to fix it because Congress controls the Controlled Substance Act and what it says. This case, the fact that it’s a high-profile case, if the Supreme Court grants certiorari, it will cause many members of Congress who don’t want to deal with this issue to have to deal with it. 

“I think it’s going to help grease the wheels, let’s say – particularly in the Senate and particularly after the election.”

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