Supreme Court Declines to Take Up Legalization Case

By Willis Jacobson
Oct 13, 2020

The U.S. Supreme Court opted not to consider an appeal by a group of MED patients challenging the constitutionality of marijuana’s federal illegality. Tuesday’s decision represented a likely fatal blow to a case that had strong support in and around the cannabis industry.

Four days after holding a conference to review arguments, the Supreme Court decided not to grant a Writ of Certiorari, or further review, of the case. The decision leaves in place a lower court ruling that dismissed the plaintiffs’ appeal on grounds that they had not yet exhausted all administrative appeals with the U.S. Drug Enforcement Administration (DEA).

The lawsuit at the center of the appeal, Washington v. Barr, pitted a group of MED patients and advocates, led by former NFL player Marvin Washington, against U.S. Attorney General William Barr. The plaintiffs argued that the DEA’s classification of marijuana as a Schedule I drug violates their constitutional rights to access life-saving medication. 

They declined to exhaust all remedies with the DEA, arguing that doing so would likely be pointless, given the DEA’s history of resisting changes to the Controlled Substances Act (CSA), or potentially detrimental to their cause. If the DEA chose to reschedule marijuana as a Schedule II drug, for example, it could place it under a prescription model, which could limit access for patients and disrupt established markets.

New York City-based Hiller PC attorney Michael Hiller, who represents the plaintiffs, expressed disappointment Tuesday in the high court’s decision.

“For every Brown v. Board of Education, there are dozens of earlier, lesser-known legal battles which set the stage for eventual changes in the law to right the wrongs of the past and the problems of the present,” he said. “Regrettably, today’s decision falls into the latter category, not the former.”

Along with Washington, other plaintiffs in the case include 15-year-old MED patient Alexis Bortell, Iraq War veteran Jose Belen, 9-year-old MED patient Jagger Cotte, and the Cannabis Cultural Association, which advocates for reform.

The plaintiffs’ lawsuit, initially filed in 2017, drew amicus briefs – legal shows of support – from 19 different organizations, many of them advocacy groups, and seven Democratic members of Congress.

Hiller said that wide-ranging support was “invaluable and reflective of the national consensus that the CSA’s criminalization of cannabis is unjust and violates the Constitution.” 

Washington, who won a Super Bowl with the Denver Broncos before becoming a cannabis entrepreneur and activist, also expressed frustration over Tuesday’s Supreme Court decision. 

Part of the plaintiffs’ lawsuit focused on social justice elements of the CSA, as it noted people of color are three to four times more likely than white people to face arrest, prosecution and incarceration for cannabis-related crimes. This is despite studies showing that white Americans use marijuana in equal proportions as other races.

“At a time when the country is finally beginning to come to grips with both the subtle and more patent forms of racism, the Supreme Court’s intervention in this case could finally have allowed us to turn the page on one of America’s most insidious laws,” Washington said. “It’s a shame that the justices didn’t see fit to give us a hearing.”

Teenager Bortell, who has a debilitating seizure disorder and credits a THC-CBD oil with saving her life, agreed. Bortell and her parents were hopeful the lawsuit would lead to marijuana being removed from the CSA, which would bring legal clarity to their situation, as well as those of the country’s other estimated 3M MED users. Currently, MED patients operate under a hodgepodge of state and local laws and are barred from certain federally-backed programs and places.

“Medical marijuana patients just want to be treated like everybody else, and not feel that, because we need [to] take medication that keeps us healthy and alive, we’re somehow committing a crime, or that our parents are,” Bortell said. “We’re just normal people.”

Although the lawsuit did not result in a favorable ruling, supporters of the suit note that it brought some smaller victories. A Second Circuit panel, for example, reviewed the appeal in May 2019 and acknowledged that cannabis had medically benefitted some of the plaintiffs. Since cannabis is a Schedule I drug, the government formally considers it to have no medical use.

That circuit court panel agreed with lower courts that the suit should be dismissed due to the plaintiffs not first exhausting appeals with the DEA, but it also ruled that it may be appropriate for the court to review their claims again if delays by the DEA cause them more harm.

Attorney Fatima Afia, also of Hiller PC, emphasized the significance of that Second Circuit ruling, even though the plaintiffs decided against petitioning the DEA. She said Washington v. Barr was the first case challenging the constitutionality of the CSA to have “resulted in a ruling, directing the DEA to reconsider the classification of cannabis, and to do so with ‘all deliberate speed.’”

Hiller, the plaintiffs’ lead attorney, said “we will continue our fight for legalization until the laws criminalizing cannabis are eradicated.”

“This is a civil and human rights issue which, sooner or later, must and will be addressed,” he said.

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