Medical marijuana patients and advocates are taking their lawsuit against the Drug Enforcement Administration (DEA) all the way to the U.S. Supreme Court.
In a petition filed last month and formally docketed with the high court on Thursday, the plaintiffs asked the justices to take up their case challenging the constitutionality of federal cannabis prohibition. This comes after a series of rulings in lower courts since the original lawsuit was filed in 2017.
Lawyers representing the coalition of medical cannabis patients and activists—including Alexis Bortell and former NFL player Marvin Washington—said in April that the past rulings in the case made it clear their only source of acceptable relief would come from the Supreme Court.
That’s because both a U.S. District Court and U.S. Court of Appeals for the Second Circuit previously determined that they would have to first seek administrative relief through existing channels such as a petition asking DEA directly to reclassify cannabis.
But the plaintiffs said they wouldn’t go that route because they believe the request would be denied by DEA and because the agency would, at best, reclassify marijuana as a Schedule II drug, which they say could create additional harms in terms of patient access to the plant.
Therefore, they’re taking their appeal to the nation’s highest court. It’s the “final hurdle the plaintiffs must clear to obtain the relief they seek,” the law firm Hiller PC said in a press release on Friday.
The case argues that the current classification of cannabis as a Schedule I drug under the Controlled Substances Act is “unconstitutionally irrational and violates plaintiffs’ fundamental rights.”
Michael Hiller, lead counsel for the plaintiffs who is working on a pro bono basis, said that he’s optimistic that the Supreme Court will take up the case given the “mass uncertainty” surrounding marijuana laws in the country, the “conflicting decisions among the courts” on the issue and the “millions of Americans who depend on medical cannabis to keep themselves healthy and alive.”
Joseph Bondy, who is also pro bono counsel for the plaintiffs, said the legal team is “particularly proud to see the unification of the cannabis legalization movement behind this petition, as evidenced by the dozen or more organizations and the members of Congress who we expect will be seeking leave to file ‘friend of the Court’ amicus briefs in support of plaintiffs’ petition.”
#BreakingNews: Pro bono lead counsel Michael Hiller @HillerPC and I have docketed our certiorari petition to end federal cannabis prohibition with the U.S. Supreme Court. #GetUpStandUp #LegalizeIt #MOREact #JusticeForAll pic.twitter.com/aZmL3k9u0R
— Joseph A. Bondy (@josephabondy) August 16, 2020
It’s not immediately clear which advocates or members of Congress will be filing amicus briefs. The Supreme Court isn’t expected to take action on the petition until next year.
Here are the three legal questions posed to the court in this latest filing:
“1. Can Congress, consistent with the Due Process Clause of the Fifth Amendment to the U.S. Constitution, criminalize medical cannabis without exception, even for patients who require its daily administration to live?
2. Given the three requirements for designation as a Schedule I drug under the CSA (21 U.S.C. § 812(b)(1)), is the classification of cannabis so irrational that it violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution?
3. Can Congress, consistent with the Due Process Clause of the Fifth Amendment to the U.S. Constitution, require persons aggrieved by the classification of a substance under the CSA to submit to an administrative review process that cannot, as a matter of law provide the relief they seek?”
DEA has on numerous past occasions outright denied petitions to change marijuana’s status under the CSA, most recently in 2016.
The current case isn’t the only cannabis-related lawsuit DEA has faced in recent years. Scientists sued the agency last year, alleging that it had deliberately delayed approving additional marijuana manufacturers for research purposes despite pledging to expand the number of those facilities in 2016.
A court mandated that DEA take steps to make good on its promise, and that case was dropped after DEA provided a status update.
In March, DEA finally unveiled a revised rule change proposal that it said was necessary due to the high volume of applicants and to address potential complications related to international treaties to which the U.S. is a party.
The scientists behind the original case filed another suit against DEA, claiming that the agency used a “secret” document to justify its delay of approving manufacturer applications.
That was born out when the Justice Department Office of Legal Counsel document was released in April as part of a settlement in the case, revealing, among other things, that the agency feels that its current licensing structure for cannabis cultivation has been in violation of international treaties for decades.
Separately, DEA recently disclosed details about their investigation into certain California marijuana businesses, which they said this month is part of a probe into possible illegal importation and transportation of marijuana oil from Mexico by certain state licensees.
Read the Supreme Court filing from the marijuana activists below: