The Lawsuit to End Cannabis Prohibition: Almost There

When you look at a map of states that have legalized cannabis use and sale, it is hard to believe that “marijuana” remains classified as a Schedule I drug under the federal Controlled Substances Act (CSA). A decisive majority of states and voters, across the political spectrum, believe the marijuana prohibition should end. The war on drugs has failed abjectly. And yet, here we are.

Over the years, many different parties have undertaken efforts to end prohibition. A dozen times or so, private parties have filed petitions with the Drug Enforcement Administration (DEA), per CSA protocol on rescheduling. The DEA has routinely denied each petition, or declined to accept it outright. The lone exception was a petition filed by the pharmaceutical manufacturer of Marinol, to move the synthetic cannabis drug from Schedule II to Schedule III. That one was granted.

Other efforts have been made in the court system. These efforts are too numerous to detail at present, but they too have failed. Even a ruling by DEA’s own administrative law judge that cannabis should be reclassified was swatted away by the agency—and that was nearly 30 years ago. Nevertheless, a group of plaintiffs is at it again. It seems that today, almost fifty years after marijuana was placed on Schedule I of the CSA, people are less tolerant of prohibition than ever before.

The lawsuit at issue was filed by a group of five plaintiffs. The first is 12-year-old Alexis Bortell, who uses cannabis oil successfully to treat life-threatening seizures. Her family had to relocate to Colorado from Texas, because she could not acquire oil under Texas law. The second is 6-year-old Jagger Cotte, who treats with cannabis for Leigh Syndrome, a horrible, terminal neurological disorder. Third is former NFL linebacker Marvin Washington, who makes cannabis-based products for head trauma. Fourth is Iraq War veteran Jose Belen, who suffers from post-traumatic stress disorder and was given the option of “opioids or nothing” from the Veteran’s Administration. The final plaintiff is the Cannabis Cultural Association, a nonprofit seeking to reverse the racially disparate impact of cannabis prohibition. In lawyer terms, these are “sympathetic plaintiffs” all the way through.

The lawsuit targets marijuana’s status as a Schedule I drug under the CSA, and it asks the court to declare this status unconstitutional under the Due Process Clause of the Fifth Amendment, the Right to Travel, and the Commerce Clause. It also seeks a permanent injunction restraining the federal government from enforcing the CSA as relates to marijuana, and other relief. The named defendants here include none other than Attorney General Jeff Sessions, the Department of Justice, DEA, and the United States itself. Earlier in the litigation, plaintiffs sought a temporary restraining order against the feds with respect to enforcement of the CSA as to cannabis, but that motion was denied.

Notwithstanding that early setback, the lawsuit itself is well conceived and expertly written. It was filed in District Court, which is an unusual venue and interesting gambit by the plaintiffs. Typically, challenges to marijuana’s status under the CSA have been brought in administrative fora, where venue is not in dispute. Here, however, plaintiffs argue that the administrative process has proven to be so dysfunctional—and plaintiffs’ requests so urgent—that district court is a viable alternative. Thus, much of the oral arguments presented recently by both sides centered around whether the plaintiffs’ case could continue. If the judge can find a creative justification for that to occur, he seems to be leaning strongly toward plaintiffs on the merits.

If the plaintiffs somehow prevail, Sessions et al. would likely appeal the ruling to the U.S. Court of Appeals for the Second Circuit. Unfortunately, that court has previously held that marijuana’s Schedule I status is constitutional. In addition, another U.S. District Court judge in New York recently rejected a constitutional challenge to the Schedule I status of marijuana, albeit in a criminal matter. In the big picture, the odds are somewhat long for this particular case.

Even if plaintiffs do not prevail, their efforts have received a ton of valuable press from the outset. The fact that taxpayer dollars are being spent to battle a 12-year-old epileptic girl, a dying child, a traumatized veteran, and others, is a terrible look for the feds. Our strong hope is that this lawsuit and the relentlessly rising tide of public opinion will force Congress to finally act. Voters are no longer interested in prohibition, which is morally and legally indefensible. It’s time for a change.