Politics
Supreme Court Should Hear Marijuana Case That Could Affect Other Issues, Man In Endangered Species Act Dispute Says
A public interest law firm representing a man who says federal law unconstitutionally infringed on his property rights has joined the chorus of voices urging the U.S. Supreme Court to take up a case challenging a key underpinning of federal marijuana prohibition.
In an amicus brief filed with the court on Wednesday, the Pacific Legal Foundation—representing Florida resident Michael Colosi—said their client’s property dispute “exemplifies” how the Commerce Clause of the U.S. Constitution has been misinterpreted and misapplied, giving the federal government unsanctioned authority over intrastate commerce.
In Colosi’s case, he was told by his local government that, in order to build a home on a specific property in Charlotte County, he needed to pay $200,000 development fee because a bird species known as the Florida scrub-jay could someday populate the area. That’s because the federal government classifies the species as “threatened.”
“Colosi sued, alleging that the federal government has no authority to regulate an intrastate species without a direct connection to interstate commerce,” the brief says. “Colosi and Petitioners face the same dilemma: they are injured by federal regulation of activities the Constitution does not authorize the federal government to regulate.”
To that point, the Massachusetts-based marijuana businesses that are asking the Supreme Court to take their case similarly argue that federal law unconstitutionally prohibits intrastate cannabis activity, contravening the Commerce Clause.
“Canna Provisions is not the first petitioner to ask this Court to clarify the Commerce and Necessary and Proper Clauses’ scope, but its case presents a unique opportunity to temper wrongly decided past precedent and protect property rights,” the filing says.
“Colosi’s effort to build a house was blocked by federal regulation because a threatened, intrastate species, the Florida scrub-jay, may nest on the land. When challenged as to the condition it placed on Colosi’s planned land use, the federal government used the Commerce and Necessary and Proper Clauses to justify its regulation of intrastate species with no aggregate impact on interstate commerce. Its argument is made possible by this Court’s acceptance of the rational basis test in its Commerce and Necessary and Proper Clause jurisprudence. Colosi is not the first, and will not be the last, landowner harmed by government overreach under unconstitutional federal laws.”
“This Court should seize this chance to correct its Commerce and Necessary and Proper Clause precedents before federal overreach harms more people,” it says, adding that the policy dissonance “has broad negative impacts on property owners, local governments, and the liberty that the enumerated powers are meant to protect. This Court should grant the petition.”
The filing highlights how the cannabis case, if taken up by the high court, could end up having broad implications beyond the marijuana issue specifically, depending on how the justices rule.
The amicus brief was filed one day after The Cato Institute, a libertarian think tank, similarly implore justices to consider the case, Canna Provisions v. Bondi. The court scheduled a closed-door meeting for next month to consider addressing the issue.
The powerhouse law firm Boies Schiller Flexner LLP last month submitted their petition for writ of certiorari from the court on behalf of their clients, and the Justice Department earlier this month declined the opportunity to file a brief for or against the case’s consideration by the justices.
A lead attorney representing the petitioners recently told Marijuana Moment that he’s “hopeful”—albeit somewhat “nervous”—about the prospect of justices ultimately taking up the matter and deciding to address the key legal question about the constitutionality of federal cannabis prohibition.
“Time is of the essence,” Josh Schiller said, 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.”
Before the conference was scheduled, the Koch-founded Americans for Prosperity Foundation also submitted an amicus brief encouraging justices to take the case.
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.
While it is not clear if SCOTUS will ultimately take the case, one sign that at least some on court might be interested in the appeal is a 2021 statement from Justice Clarence Thomas, issued as the court denied review of a separate dispute involving a Colorado medical marijuana dispensary.
Thomas’s comments at the time seemed to suggest it’d be appropriate revisit the precedent-setting case, Gonzales v. Raich, where 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.
The initial complaint in the current case, filed in U.S. District Court for the District of Massachusetts, argued that government’s ongoing prohibition on marijuana under the CSA was unconstitutional because Congress in recent decades had “dropped any assumption that federal control of state-regulated marijuana is necessary.”
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At oral arguments on appeal late last year, David Boies told judges that under the Constitution, Congress can only regulate commercial activity within a state—in this case, around marijuana—if the failure to regulate that in-state activity “would substantially interfere [with] or undermine legitimate congressional regulation of interstate commerce.”
Boies, chairman of the firm, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others.
Judges, however, said they were “unpersuaded,” ruling in an opinion that “the CSA remains fully intact as to the regulation of the commercial activity involving marijuana for non-medical purposes, which is the activity in which the appellants, by their own account, are engaged.”
The district court, meanwhile, said in the case that while there are “persuasive reasons for a reexamination” of the current scheduling of cannabis, its hands were effectively tied by past U.S. Supreme Court precedent in Raich.
This comes in the background of a pending marijuana rescheduling decision from the Trump administration. President Donald Trump said in late August that he’d make a determination about moving cannabis to Schedule III of the CSA within weeks, but he’s yet to act.
Meanwhile, last month the Supreme Court agreed to hear a separate case on the constitutionality of a federal law prohibiting people who use marijuana or other drugs from buying or possessing firearms. The Trump administration has argued that the policy “targets a category of persons who pose a clear danger of misusing firearm” and should be upheld.
