Court asked to decide constitutionality of Schedule I status of pot

In recent years, cannabis legalization efforts at the federal level have rightly been characterized as a failure of political leadership in Washington. Most continue to look to Congress to solve the problem by aligning federal law with the 33 states that have legalized the medicinal or adult use of cannabis. The federal courts have thus far largely sat on the sidelines, reasoning that the reclassification or de-scheduling of marijuana under the Controlled Substances Act (CSA) is an administrative decision best left to the Drug Enforcement Administration.

That may change if the U.S. Supreme Court grants certiorari in the case of Washington et al. v. Barr et al., which seeks to invalidate marijuana's Schedule I status under the CSA on constitutional grounds. In early September, nine amicus briefs were filed with the Supreme Court in support of the petitioners, including briefs by members of Congress, major organizations, researchers and scientists. Since 2008, only eight cases among the many thousands seeking certiorari before the Supreme Court have stimulated this level of amicus activity.

Some amici emphasized issues of perceived DEA bias and the origins of criminalizing marijuana in racial discrimination, while others focused on the constitutional rights of specific groups, including medical patients and historically disenfranchised communities. This author, however, places emphasis on the arguments that he raised in the brief written on behalf of the National Cannabis Industry Association (NCIA) and The Arcview Group. NCIA is the largest cannabis trade association in the United States and Arcview is the cannabis industry's oldest and largest investor network. Both organizations have a significant interest in the responsible and legal development of a sustainable cannabis industry in the United States.

Procedural Background

The petitioners include two children with serious seizure disorders who require life-saving medical cannabis, an Iraq war veteran who treats his severe PTSD with medical cannabis, and a former NFL football player who is now an entrepreneur in the medical cannabis space.

In their complaint, filed in the Southern District of New York, the petitioners asked the trial court to strike down marijuana's Schedule I status on the grounds that it violates their rights under the due process clause of the Fifth Amendment of the U.S. Constitution.

Both the trial court and the 2nd U.S. Circuit Court of Appeals held that the petitioners were required to exhaust administrative remedies with the DEA before they could seek a legal remedy with the court. The petitioners then appealed to the Supreme Court.

Prejudice from Administrative Delay

A core argument made by petitioners and amici is that requiring exhaustion of administrative remedies would result in the petitioners facing substantial prejudice because the DEA maintains an irrational and archaic position on the scheduling of cannabis that is out of step with sweeping medical, scientific, legal and social advances. The DEA is not only unwilling, but also incapable of providing the legal remedy sought by the petitioners, making exhaustion futile and inappropriate. As recently as 2016, the DEA reiterated its long-standing but flawed position that it cannot legally classify cannabis anywhere but Schedule I of the CSA, or potentially Schedule II, due to international treaty obligations.

In dismissing the petitioners' constitutional claim, the 2nd Circuit casually concluded that "it cannot be seriously argued" that reclassification or de-scheduling of cannabis is not available through the administrative process. Yet petitioners make precisely this argument. For nearly 50 years, multiple marijuana-related petitions have been pursued unsuccessfully with the DEA.

In their amicus brief, NCIA and Arcview further ask the Supreme Court to consider whether it is reasonable to believe that filing yet another petition with the DEA would cause the administration to reverse an entrenched legal position that has become irrational over time, and particularly when the DEA has vigorously defended that position since as long ago as 1972 and as recently as 2016.

Questions of Constitutional Violations Are Best Left to the Courts

The DEA has had multiple opportunities since the early 1970s to determine the proper classification for cannabis under the CSA, including whether it should have any classification under the statute. The evidence from the petitions filed over decades leads to the inescapable conclusion that the administration has consistently devalued or ignored advances in cannabinoid science.

Indeed, the 2nd Circuit acknowledged in its decision under appeal that based on our current state of knowledge, "it is possible that the current law, though rational once, is now heading toward irrationality; it may even conceivably be that it has gotten there already." This is precisely the point. The DEA cannot reasonably be expected to determine whether its own entrenched position has become so irrational that it now violates the Petitioners' constitutional rights. That is an issue squarely within the domain of the courts, not a federal law enforcement agency.

DEA's Use of Its Limited Authority to Reclassify Marijuana as a Schedule II Controlled Substance Would Cripple the Burgeoning Legal Cannabis Industry

Current federal policy regarding enforcement of the CSA has shown ambivalence where the possession and distribution of marijuana is consistent with well-regulated state law. The federal government's position that it will not prosecute state-compliant medical marijuana operators, despite marijuana's Schedule I status, has created a "de facto" quasi-legal status for the plant. No other industry in the history of this country has been able to survive and grow to this extent in the face of such a legal quagmire.

The DEA's self-asserted sole administrative remedy of reclassification to Schedule II, however, could result in the destruction of all state cannabis programs and a further resurgence of the unregulated illicit marijuana market. The creation of a prescription drug model could have devastating financial implications on the nascent cannabis industry and could be far worse than the troublesome status quo under Schedule I. The resulting harmful social costs include removing access to medical cannabis for millions of patients, loss of tens of thousands of jobs, the evisceration of billions of dollars in needed tax revenue and the resurgence of the illicit marijuana market. Reclassification to Schedule II also would put at risk the $2.62 billion in venture capital infused into the marijuana industry in 2019 alone.

What to Expect

The petitioners and the numerous amici broadly concur that the case should be allowed to proceed in the district court. If the Supreme Court grants certiorari and agrees on the merits, this would result in a jury being asked to determine whether marijuana presents a high potential for abuse, has no currently accepted medical use and is too dangerous to use even under medical supervision. If the jury answers "no" to any of these questions, which is likely, marijuana must be removed from Schedule I of the CSA as a matter of law. Such a decision would force Congress to act. Given widespread public approval and expanding cannabis markets in 33 states and counting, the only viable regulatory framework will be to de-schedule marijuana from the CSA and regulate it in a manner similar to alcohol. The courts therefore may yet have a part to play even though the ultimate solution is legislative. Progress in the cannabis legalization effort at the federal level has been measured in inches, but Supreme Court review on this important constitutional issue could be a win of yards. 