The U.S. Department of Justice is pushing back against a lawsuit that aims to prevent federal prohibition from applying within the borders of states that have legalized cannabis.
The DOJ filed a motion on Tuesday to dismiss the suit against Attorney General Merrick Garland, which was brought forth by several cannabis companies in October, as Cannabis Wire reported at the time.
The motion to dismiss the suit was expected, and the forthcoming legal battle is part of the plan. From the moment the suit was announced, one of the plaintiffs, Verano Holdings, said that they “are prepared to bring this case all the way to the Supreme Court.”
In October, Verano, along with Canna Provisions, Gyasi Sellers, and Wiseacre Farm – all based, or operational, in Massachusetts, where cannabis is legal for medical and adult use – filed the suit against Garland in the U.S. District Court for the District of Massachusetts, Western Division.
However, other cannabis companies and investment firms championed the suit early on, too, as “foundational supporters,” including Ascend Wellness Holdings, TerrAscend, Green Thumb Industries, Eminence Capital, and Poseidon Investment Management.
Currently, as a result of the Controlled Substances Act, the federal law upholding prohibition, state-legal cannabis businesses face a number of obstacles that don’t exist for other legal businesses. For example, some financial institutions are reluctant to work with cannabis businesses for fear of running afoul of federal law.
If this suit reaches the U.S. Supreme Court, it won’t be the first time the court will have considered whether the CSA can apply to both interstate commerce and intrastate commerce. In 2005, in Gonzales v. Raich, the court decided that the federal government could impose the CSA intrastate because it was a necessary piece of achieving the CSA’s goal of preventing interstate cannabis commerce. Nearly twenty years later, the plaintiffs argue that with robust regulation of legal cannabis in dozens of states, times have changed.
The plaintiffs’ complaint makes two core arguments: that the “intrastate” enforcement of the CSA “undermines state marijuana programs, harms businesses large and small, and threatens public safety,” and that “Congress has no rational basis for prohibiting state-regulated intrastate marijuana,” in part because of its “inconsistent” and hands-off approach to state cannabis laws and programs to-date.
As a result, they are specifically seeking two things from the court: that it “issue a declaratory judgment that the Controlled Substances Act is unconstitutional as applied to the intrastate cultivation, manufacture, possession, and distribution of marijuana pursuant to state law,” and that it “permanently enjoin Defendant from enforcing the CSA (either alone or in conjunction with any other federal law such as the Bank Secrecy Act) in a manner that interferes with the intrastate cultivation, manufacture, possession, and distribution of marijuana, pursuant to state law.”
The DOJ’s motion argues that the plaintiffs’ points with regard to Gonzales v. Raich are “unpersuasive,” and that “federal regulation of intrastate marijuana activities is constitutional.”
It also argues that “no fundamental right exists to distribute, possess, or use marijuana,” and therefore the CSA does not violate plaintiffs’ “right to substantive due process.”
Further, it argues that the plaintiffs “lack standing to challenge the CSA” because they fail to “show a substantial risk of future enforcement.” In fact, it argues, the plaintiffs “allege the opposite.” This particular point is noteworthy because, here, the DOJ is essentially confirming its hands-off approach to state-legal cannabis.
While the plaintiffs also focus on the ripple effects of federal prohibition, such as the hesitation on the part of some financial institutions to work with the cannabis industry, the motion dismisses those points, too. “Neither Plaintiffs’ contention that they are harmed by other federal laws and policies whose constitutionality is not challenged here, nor Plaintiffs’ allegations that some third parties have independently chosen not to transact with them, suffice to provide Plaintiffs with standing to challenge the CSA,” it reads.
Garland’s motion makes only a passing mention of the other big cannabis news with regard to the CSA, and that is the recommendation by the U.S. Department of Health and Human Services to the DOJ (specifically, the DEA) that cannabis be moved from Schedule I to Schedule III.
“The DEA is currently considering HHS’s recommendation to reschedule marijuana,” it reads. “It is not for the courts to disrupt or get ahead of that administrative process.”