Biden DOJ Tells Federal Court Not To ‘Disrupt’ Marijuana Rescheduling Decision By Allowing Industry Lawsuit To Proceed
Published 15 hours ago on January 23, 2024By Kyle Jaeger
The Justice Department has asked a federal court to dismiss a cannabis industry lawsuit that seeks to block the enforcement of marijuana prohibition against state-legal activity—in part, it says, because the court should not get ahead of a possible cannabis rescheduling decision that’s being considered.
In a document filed with the U.S. District Court for the District of Massachusetts, Western Division, on Tuesday, lawyers for Attorney General Merrick Garland said that Congress “rationally set up an administrative process for rescheduling drugs.”
“Pursuant to that mechanism, the DEA is currently considering” a recommendation from the U.S. Department of Health and Human Services (HHS) “to reschedule marijuana” under the Controlled Substances Act (CSA).
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“It is not for the courts to disrupt or get ahead of that administrative process,” DOJ said.
Overall, DOJ also said that marijuana businesses who brought the case lack standing to pursue the challenge because they cannot claim direct injury since they haven’t been federally prosecuted under the policy of prohibition. The filing also notes that a long-standing congressional rider has been in place for a decade, barring the department from using federal funds to interfere in state-legal medical cannabis laws.
“Plaintiffs do not dispute that as enacted, the CSA rationally served legitimate government purposes. Yet they argue that the CSA has been rendered irrational because Congress has chosen to allow federal territories to enact marijuana legalization laws and has prohibited the Department of Justice on spending funds to prevent implementation of state medical marijuana laws…while the Department of Justice has allegedly exercised prosecutorial discretion to decline to prosecute conduct that complies with state marijuana laws under certain circumstances.”
“Yet as explained above, these actions and inactions serve the rational purpose of facilitating state and local experimentation with marijuana laws while focusing federal law enforcement resources on conduct that most significantly affects federal interests,” it says.
The government also asserts that precedent set in a 2005 Supreme Court ruling negates plaintiffs’ argument that the U.S. Constitution’s Commerce Clause renders bans on interstate marijuana commerce unlawful.
The case is a “transparent entreaty to overrule” that precedent, known as Raich, DOJ said.
“Federal regulation of intrastate marijuana activities is constitutional because such activities “substantially affect interstate commerce,'” the department argued. “Plaintiffs get no further by claiming that the CSA violates their right to substantive due process. Courts have consistently, and correctly, held that no fundamental right exists to distribute, possess, or use marijuana. Therefore, the CSA is subject only to deferential rational basis review, which it easily survives.”
“To raise a pre-enforcement challenge to a law, a plaintiff must show a substantial risk of future enforcement. Here, Plaintiffs allege the opposite, that the government’s policy is not to prosecute conduct that complies with state marijuana laws. Neither Plaintiffs’ contention that they are harmed by other federal laws and policies whose constitutionality is not challenged here, nor Plaintiffs’ allegations that some third parties have independently chosen not to transact with them, suffice to provide Plaintiffs with standing to challenge the CSA.”
The motion to dismiss additionally says that plaintiffs “fail to allege facts showing that the risk of prosecution is substantial.”
“In fact, Plaintiffs’ allegations negate the existence of such a substantial risk,” it says. “Yet even if this Court were sympathetic to Plaintiffs’ arguments that [Gonzales v. Raich] holding should no longer be good law, stare decisis commands that this Court adhere to Raich unless and until it is overruled by the Supreme Court
“Moreover, Plaintiffs allege that the Department of Justice has implemented a policy of prosecutorial discretion that guides federal law enforcement to focus enforcement resources ‘on persons or organizations whose conduct interferes’ with important federal interests such as curtailing violence and gang activity, and otherwise to rely largely on ‘enforcement of state law by state and local law enforcement and regulatory bodies’ to ‘address[] marijuana-related activity.'”
The filing adds that a policy of prosecutorial discretion for federal marijuana cases such as under the Obama-era Cole memo that was rescinded under the Trump administration is a “surely rational” approach.
In the overarching lawsuit, plaintiffs claim that perpetuating prohibition in state markets is unconstitutional, creating undue public safety risks while precluding licensed marijuana businesses from accessing critical financial services and tax deductions that are available to other industries.
Reacting to the DOJ filing on Tuesday, the plaintiffs said in a statement that they “look forward to demonstrating their standing before the Federal District Court in Springfield, Massachusetts.”
“Plaintiffs have been injured by the federal government’s ban on cultivating, manufacturing, and distributing intrastate marijuana. Plaintiffs brought this suit to stop the enforcement of that unconstitutional ban and protect themselves and others similarly situated from further injury,” they said. “The facts in the complaint distinguish this case from Gonzales v. Raich, the 2005 Supreme Court decision on which the government continues to rely.”
The government filing comes about a month after the Justice Department and plaintiffs—a coalition of marijuana businesses represented by an influential law firm—jointly agreed to request a deadline extension for the filing of initial briefs.
The suit against the federal government is being led by multi-state operator Verano Holdings Corp. and the Massachusetts-based cannabis businesses Canna Provisions and Wiseacre Farm, along with Treevit CEO Gyasi Sellers.
On Monday, DOJ sought permission to submit the new 25-page of memorandum that exceeds the general 20-page limit allotted under the rules.
The law firms Boies Schiller Flexner and Lesser, Newman, Aleo & Nasser LLP are representing the plaintiffs. David Boies, chairman of the former 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.
The lawsuit alleges that while Congress originally banned marijuana through the Controlled Substances Act (CSA) in an attempt to eradicate interstate commerce, ostensibly giving the government a basis to enforce prohibition at the state level, lawmakers and the executive branch have since “abandoned”
