The U.S. Supreme Court announced on Tuesday that it will not hear a case challenging the constitutionality of federal marijuana prohibition.
A coalition of medical cannabis advocates, including former NFL player Marvin Washington, young patient Alexis Bortell and military veteran Jose Belen, initially filed a lawsuit against the Drug Enforcement Administration (DEA) in 2017. But while the case has gradually moved through the judiciary, the decision by the high court represents a sound defeat for the challenge.
The justices met to discuss this and other pending matters last week. Activists were hopeful that their arguments—combined with the support they received from advocacy groups and members of Congress—would compel the Supreme Court to take up their suit. But the justices ultimately listed it among the cases that they are declining to take up.
That’s not especially surprising given the small percentage of cases that the high court accepts, but it’s a major setback for the activists nonetheless.
“While not surprising, as less than one percent of all petitions to the Supreme Court get a hearing, it is still very disappointing, as we been fighting for this case for over three years now,” Sebastien Cotte, whose son Jagger was a plaintiff in the case, told Marijuana Moment.
“However, we must not forget that this case has been groundbreaking on so many levels. Not only a did federal judge say on record that looking at Alexis, Jagger and Jose that it is undeniable that cannabis has medical properties, but we also believe that this case moved the needle closer to descheduling of cannabis by bringing extra awareness to the unfairness of the current classification of cannabis,” he said. “We are confident our case will help another case down the road achieve the ultimate goal, as everyone knows that it is not a question of if cannabis will be descheduled, but when.”
The case was rejected in a series of rulings by lower courts, but attorneys for the plaintiffs said those decisions 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 advocates would have to first seek administrative relief through existing channels such as a petition asking DEA directly to reclassify cannabis.
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.
Reps. Earl Blumenauer (D-OR), Tulsi Gabbard (D-HI), Jared Huffman (D-CA), Barbara Lee (D-CA), Alan Lowenthal (D-CA), Mark Pocan (D-WI) and Jamie Raskin (D-MD) each signed an amicus brief in support of the lawsuit last month, stating that the Schedule I status of marijuana under the Controlled Substances Act (CSA) “creates an unconstitutional framework that unfairly burdens their constituents.”
“Disappointed with the High Court’s decision not to hear the case of cannabis medical patients and address unjust and unconstitutional federal drug laws,” Blumenauer told Marijuana Moment after the justices’ decision was announced. “As we continue the fight in the halls of Congress, it’s more important than ever that we pass the MORE Act, our bipartisan legislation to legalize marijuana and end the failed war on drugs that has hurt so many.”
Additional briefs in support of the lawsuit were filed by NORML, International Cannabis Bar Association, National Cannabis Industry Association, Arcview Group, Last Prisoner Project, Americans for Safe Access, Minority Cannabis Business Association and others.
DEA has on numerous past occasions denied petitions to change marijuana’s status under the CSA.
“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,” said Michael Hiller of Hiller, PC, the pro bono lead counsel in the case. “Regrettably, today’s decision falls into the latter category, not the former.”
“We will continue our fight for legalization until the laws criminalizing cannabis are eradicated,” he said. “This is a civil and human rights issue which, sooner or later, must and will be addressed.”
This latest case isn’t the only cannabis-related lawsuit DEA has faced in recent years.
Lawyers representing a group of scientists and military veterans filed a comprehensive brief in federal court earlier this month, outlining their case challenging decisions about the classification of marijuana made by the agency. A week later, a major military veterans group urged the court to take up that case.
The plaintiffs initially filed that lawsuit against the federal agency in May, contending that DEA’s justification for maintaining a Schedule I status for cannabis is unconstitutional. DEA attempted to quash the case by filing a motion to dismiss, but the U.S. Court of Appeals for the Ninth Circuit rejected that request in August.
The plaintiffs also sued the agency last year in a separate case, 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 suit 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 same 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, a federal court recently ruled that California regulators must comply with a DEA subpoena demanding information about marijuana businesses that they are investigating.
This story was updated to add comment from Blumenauer, Hiller and Cotte.