The ballsy legal case of Washington v. Sessions has made national news. Five plaintiffs—including former NFL Player Marvin Washington, two children who use cannabis for life-threatening conditions, a veteran with post-traumatic stress disorder, and one other—are suing Attorney General Jeff Sessions, among other federal agents, on the grounds that cannabis prohibition is unconstitutional. The judge heard their case during an oral argument in a federal courthouse on February 14. If the plaintiffs win, it could make cannabis legal in all 50 states.
From a moral standpoint, many see it as a no-brainer: Kids, who would otherwise die without medical cannabis, deserve to legally consume it, so it should be de-scheduled as an illegal narcotic. From a legal standpoint, it’s a bit murkier. Herb sat down with the plaintiffs’ attorney David C. Holland, Esq. to hear what the judge must consider in the case.
Holland’s cannabis curriculum vitae is lengthy. He is a litigation attorney in New York City and serves as Executive and Legal Director of Empire State NORML. He is also former Counsel to High Times Magazine, and a member of the New York Cannabis Bar Association. Holland walked us through the points both sides are making, what transpired in court last week and what ruling is expected.
Herb: Why have the plaintiffs sued U.S. Attorney General Jeffrey Sessions?
Holland: The five plaintiffs have sued U.S. Attorney General Jeffrey Beauregard Sessions, III, and the DEA, to declare the classification of cannabis under the Controlled Substances Act unconstitutional on claims it violates their rights, including that to travel, to be engaged in business’ interests, and to be free from racial discrimination and in enforcement of the law against communities of color. The Government denies those claims and has moved to dismiss the action.
Herb: What are the main components of the Controlled Substances Act? Take us through its procedural history.
Holland: In 1970, the federal Controlled Substances Act established 5 classifications from Schedule I to V, ranging from prohibited to prescription, which classify and categorize drugs and how they may be researched, used and administered. Marijuana was placed in Schedule I (the most restrictive) based upon three criteria: high risk of abuse, no medical efficacy or use, and no ability to use or research it in a safe manner. Cannabis has never been rescheduled since 1970.
That Schedule I classification of cannabis can be changed by one of 3 ways: act of Congress, act of the US Attorney General, or act of the FDA. Within the CSA is an administrative remedy where anyone can petition the FDA to have cannabis rescheduled where it would no longer be prohibited in that most restricted classification.
Herb: If anyone can petition the FDA, why haven’t more patients done so?
Holland: The petitioning process can take years if not a decade to get an FDA determination on the rescheduling request and they repeatedly denied those petitions as recently as 2013 (Americans for Safe Access v. FDA), and 2016 (Krumm Petition) finding that cannabis still should sit as a Schedule I substance based on those three criteria.
Herb: Tell us a bit about the plaintiffs.
AlexisJagger and Jose What the courts have to consider in order to end marijuana prohibition
From Left to Right: Alexis Bortell, Jagger Cotte and Jose Belen (Photo via Facebook Alexis Bortell/ Photo by Kevin Garrett / Photo by Cory Florin)
Holland: Three of the Plaintiffs in the Washington case, Alexis Bortell, Jagger Cotte, and Jose Belen, suffer life-threatening or severely debilitating diseases and must seek to bypass the administrative petitioning process to the FDA to get more immediate relief because they may not live long enough to otherwise wait and hear the determination. The CSA petitioning process does not have any realistically viable means for them to expedite review of a petition to bring relief to their life-altering and life-threatening circumstances. Therefore, for them, the petitioning process is futile and they seek relief from the federal court for the CSA’s violation of their constitutional rights, with regard to this medicine as well as redress of other violations and due process.
The Government has moved to dismiss the Plaintiffs’ claims on a multitude of theories rather than put in an answer to the claims and let them be heard and determined by the judge or jury.
On February 14, 2018, Judge [Alvin] Hellerstein, sitting in the federal court in the Southern District of New York, entertained written opposition to the motion to dismiss, and heard oral argument from the parties, as he deliberated his ruling on the dismissal motion. At the conclusion of the oral argument, the judge reserved his decision and retired to his chambers, to deliberate and draft an opinion about all the legal issues he was wrestling with to determine the motion.
Herb: Why did Judge Hellerstein seem so conflicted?
Holland: Judge Hellerstein was clearly wrestling with several legal issues pertaining to the Controlled Substances Act, and the reality that 30 states have already found cannabis to be a useful medical treatment, which directly contradicts one of the criteria of the CSA.
The first issue is referred to in legal terms as “Exhaustion of Remedies,” that is, whether he must defer to the prior decisions of the FDA regarding the scheduling of cannabis. The Government based its dismissal motion in part on a claim that the Plaintiffs had failed to “exhaust their administrative remedies” under the CSA. In other words, because no petition had first been filed with the FDA to reschedule cannabis, the court was without jurisdiction to actually entertain the claims of the plaintiffs and thus the case should be dismissed.
Judge Hellerstein, however, did not seem particularly swayed by that argument because several federal criminal cases have found that there is no requirement to file a petition to exhaust that administrative petition remedy when there are claims that constitutional rights are being violated by the enforcement of cannabis as a Schedule I drug under the CSA. That rule was upheld in late 2017 by the federal court in upstate New York, in a case known as US v. Green, which caused Judge Hellerstein to pause during the course of the oral argument.
Herb: Do you think that was Judge Hellerstein’s primary concern?
Holland: Not really. The issues that seemed to trouble Judge Hellerstein the most about the CSA petition process was whether he as a judge was without jurisdiction to hear, or must defer to, the administrative agency role of the FDA and prior findings in 2013 and 2016, that cannabis was properly classified as a Schedule I.
If he did have such jurisdiction, could he stand in the shoes of the FDA agency and make his own determination about the propriety of that schedule? He further was concerned about any restrictions on the court’s analysis of the language of the statute, and the proper evidence to be evaluated, to determine whether the three criteria of Schedule I status continues to be met by cannabis. Factors noted by him included the fact that 30 states had legalized marijuana for medical purposes, the federal government had filed a patent on certain cannabinoids from the cannabis plant, and the plaintiffs clearly obtained, and are able to maintain, a better quality of life because of it.
Screen Shot 2018 02 13 at 4.23.51 PM What the courts have to consider in order to end marijuana prohibition
Cannabis as a neuroprotectant and antioxidant
Herb: The language of the statute regarding the three criteria seems straightforward.
Holland: It is straightforward as “conjunctive” in that cannabis seemingly must satisfy each and every one of the three factors to qualify as a Schedule I substance and any failure of any factor renders the designation void. In other words, if Plaintiffs proved the failure of cannabis to meet any one of the three criteria (i.e., 30 states have found medical validity to marijuana), a conjunctive approach, was the court required to find the Schedule I classification null and void?
However, what seemed to concern Hellerstein was that generally, when a federal court reviews an agency’s determinations like those of the FDA repeatedly determining that cannabis satisfies the Schedule I criteria, the court must generally evaluate and disjunctively weigh all the factors in the aggregate to determine if they are satisfied with the intent of the criteria and classification.
This was a concern of the court in Green mentioned above, as well as the Eastern District of California court in the US v. Picard case which, after a 5-day hearing of evidence on the science behind the classification, ultimately concluded that any determination to reschedule cannabis is best left to Congress.
Herb: Do you think Judge Hellerstein will defer to Congress?
Holland: This quandary of whether to defer to Congress invokes the “Political Question” doctrine, where courts should generally not make decisions that are political in nature and best left to the legislative process. It is difficult to tell where Judge Hellerstein will ultimately fall on this political question issue, but he surely will wrestle with the fact that 30 states have already legalized cannabis despite its Schedule I status. That means that as a matter of politics, the actions of Congress should already have responded to the legislative actions taken by an overwhelming majority of the states.
Herb: So would he really be trodding on the toes of Congress by ruling on the classification of cannabis?
Holland: We will see.
Herb: One argument advanced by the plaintiffs was that the CSA and federal law enforcement should not govern over cannabis in the 30 legalized states.
Holland: That is correct. They argue that although Congress may regulate “interstate commerce”—aka the “Commerce Clause”— between the states, such state-based activity in those 30 states does not impact “interstate commerce.” Judge Hellerstein seemed to dismiss the argument out of hand, citing federal case law which finds that even a negligible or de minimis impact on commerce is enough to give federal jurisdiction over the issue.
Herb: There was also the argument of equal protection under the law, and racism. While the history of prohibition, ignited by former drug czar Harry Aslinger, wasn’t addressed in court, President Nixon and his administration’s racist motivations for instituting the CSA were definitely called into question. Judge Hellerstein seemed dismissive of the Nixon argument. Can you talk about how Nixon’s systemic racism is still a contributing factor to the CSA?
Holland: The Cannabis Cultural Association [one of the plaintiffs] brought a claim on behalf of their members of color, who were disproportionately targeted for prosecution for marijuana offenses under the CSA. People of color unequally suffered collateral consequences stemming from those convictions as a result.
Judge Hellerstein seemed un-persuaded by statements of President Richard Nixon and his advisor, John Ehrlichman, Esq., which made clear that the criminalizing of marijuana under the CSA was a means to suppress minorities and social dissent against the Vietnam War. Judge Hellerstein suggested that any racist tendencies of the Nixon Administration were not attributable to Congress under the separation of powers doctrine—where the powers of one branch of government are not affected by the actions of another. While there are compelling arguments to the contrary, which were not heard during the hearing, it is hoped that the issue is revisited in Judge Hellerstein’s opinion. However, since so much of that claim seems to be a question of fact that will require lots of discovery and information to be tendered by the Government, it is unlikely to be the primary focus of his anticipated decision.
Herb: It seems that there are various possible outcomes. Do you think Judge Hellerstein will dismiss the case? He hinted that he was going to kick the case to the second circuit court.
Holland: There are three possible resolutions to the Government’s motion to dismiss. Firstly, there is the potential dismissal of the claims. Secondly, Judge Hellerstein could deny the motion and all claims will proceed to trial, or lastly, some mixture of the two.
Based on the comments and concerns of the court there is a possibility that the court will follow the precedent of the district courts in Picard and Green, and find this to be a political question. However, if the court finds that there are some claims that may be dismissed but others are tenable, then there is a strong possibility that Judge Hellerstein will berate both the FDA and Congress for failing to reschedule or de-schedule cannabis, especially in light of the fact that 30 states have found that there is medical validity to marijuana. After all, as he openly stated, the plaintiffs are the best evidence of the effectiveness of cannabis as a medical cure.
For now, we will just have to wait and see. A ruling is expected as soon as this week.
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