Politics
Attorney Suing Feds Over Marijuana Prohibition Is ‘Hopeful’ The Supreme Court Will Take Up The Case
A lead attorney representing marijuana businesses in a case that’s pending consideration by the U.S. Supreme Court says he’s “hopeful”—albeit somewhat “nervous”—about the prospect of justices taking up the matter and ultimately deciding to address a key legal question about the constitutionality of federal cannabis prohibition.
Last month, the powerhouse law firm Boies Schiller Flexner LLP submitted a petition for writ of certiorari on behalf of their clients, who are arguing that the Commerce Clause of the U.S. Constitution precludes the federal government from enforcing criminalization laws against intrastate cannabis activity.
Massachusetts-based marijuana companies and industry leaders Canna Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings are asking justices to reevaluate a landmark 2005 case, Gonzales v. Raich, wherein the Supreme Court narrowly determined that the federal government could enforce prohibition against cannabis cultivation that took place wholly within California based on Congress’s authority to regulate interstate commerce.
Attorney Josh Schiller and his partners see an opening for another landmark case that could help unfurl the convoluted state-federal marijuana policy conflict.
“Time is of the essence,” Schiller told Marijuana Moment on Thursday, noting the dramatic shift in public opinion and state laws governing cannabis. “We think that this is the right time for this case because of the need—the industry needs to get relief from federal oversight at the moment.”
A U.S. appeals court rejected the arguments of the state-legal cannabis companies the firm is representing in May. It was one the latest blows to the high-profile lawsuit following a lower court’s dismissal of the claims. But it’s widely understood that the plaintiffs’ legal team has long intended the matter to end up before the nine high court justices.
Four justices must vote to accept the petition for cert in order for the court to take up the case, though the next step is for the Department of Justice to file its initial brief, currently due by November 28.
Schiller spoke to Marijuana Moment about his expectations for the cannabis case, why justices might be inclined to take it up and more. The following interview has been lightly edited for length and clarity.
Marijuana Moment: Why do think now is the right time to be pursuing this case with SCOTUS?
Josh Schiller: I think that, in the last 25 years, this decision [Gonzales v. Raich] has been sort of hanging around as an outlier—and I think that that’s captured in our petition. If you read it, I think we’ve strongly advocated as to why this decision was an outlier, and the reason to take it now is, frankly, because of the remarkable growth of the industry.
And not only do we think that this court may find that decision was wrongly decided at the time it was decided, the court may also decide that a different test or constitutional analysis should be applied. And then we just think that the facts and the stigma on weed is just gone. Generationally speaking, it’s gone. Thirty-eight states and more have it legally. It’s an accepted product that’s safely regulated within states, and that’s consumed by, frankly, I would think, more than half of the country.
Time is of the essence. Our country believes weed is safe—no longer believes it’s stigmatized, or a so-called gateway drug. I was always taught that the Supreme Court often evolves with with our culture, and old norms and misconceived notions drift away as our culture evolves, and we think that this is the right time for this case because of the need—the industry needs to get relief from federal oversight at the moment.
MM: What gives you confidences that justices will ultimately take up the case?
JS: If you’re going to use a word like ‘confidence,’ then I’m more nervous than I am confident, to be honest. We’re ‘hopeful’ is the word I would use.
We think, intellectually, we’ve raised a valid argument—and we think, intellectually, we’ve put together a case that allows the court to overturn that prior decision and to really get rid of an outlier case involving a really, really important area of the Constitution.
And obviously there are all kinds of things going on right now in our country that are, frankly, unprecedented in terms of the use of executive power. It’s kind of ironic. When we filed this case, we didn’t expect that liberal governors and attorneys general all over the country would be filing suit after suit after suit to get rid of federal power in their inner cities. But that’s what’s going on. So, you know, maybe this gets the attention of all nine justices.
Regardless, we’re hopeful that the ideological core of the conservative group that is the majority of the court still considers federalism to be a really important area of of our constitutional analysis and application of those principles that our founders held so so highly—and the interplay between the federal police power and the states to regulate themselves is one of the most important cornerstones of the Constitution.
This case is saying, ‘look, let’s re-examine how we’ve had jurisprudence on this issue in the past, and let’s correct it, because a bad decision has had an impact for the last 10 years on this industry, and this complaint helps demonstrate that.
MM: If the Trump administration moves forward with a marijuana rescheduling proposal, how might that impact your case?
JS: That wouldn’t change the importance, intellectually speaking, of our argument about the fundamentals of this cornerstone principle of the Constitution—the Commerce Clause—I don’t think it would impact their decision to take the case on it at all.
It will obviously give the industry relief. If it was so terrible how it was rolled out so slowly—and the last administration did nothing to get it done, which is terrible—my expectation is that this administration is just going to do nothing, too.
It’s quite unfortunate, because if you think about it, it’s a bipartisan issue now. It’s not a red state or a blue state issue at all. And it should be one of those things where Congress or the administration acts quickly and changes something that’s having a bad impact. It shocks me that that hasn’t happened, but I’m hopeful that it will—but I don’t think, even if it were to happen, it would have an impact.
MM: SCOTUS has recently accepted a case concerning the federal ban on gun ownership by people who use marijuana. Do you consider that encouraging with respect to the likelihood justices will accepts yours too?
JS: The suggestion is that they’re going to overturn [the ban] by taking it, right? Which has wild implications in our case if they think that that shouldn’t matter, when it interferes with your constitutional right to carry a gun, that’s also a constitutional principle, and they’re also rejecting the idea of a federal police power.
But then again, unfortunately, the Second Amendment in our country has many, many decisions over the years that I generally disagree with. They seem outcome-driven, as opposed to being logical. It’s hard to say that it has as much, or anything, to do with weed as it has to do simply with the principles of the Second Amendment
MM: The plan all along was to get this case to the Supreme Court after appealing lower court rulings that didn’t go in your favor. Can you speak to that strategy?
JS: I wouldn’t say we ever intended to lose a case. Our hope was to get to the Supreme Court to have an opportunity to overturn the prior case, and now we’re there.
We thought we got a fair opportunity in the district court to make a record, which we did. Now that record is coming up on appeal. It’s kind of an efficient strategy, because instead of going through discovery and months and months and years of litigating a case, we went straight to the appeals court. So we got here much faster than we, frankly, expected to—and we got a good record out of it.
So we were very thankful that we were able to make a record in the district court, make a record in the appeals court and now have our opportunity to very efficiently argue the merits of overturning Gonzales v. Raich.
Photo courtesy of Philip Steffan.
