A great dark cloud hangs over the bright and sunny success of marijuana legalization in the US: federal law, which still declares cannabis an outlaw plant. This status quo causes great distress to American cannabis businesses and those still in federal prisons for marijuana offenses. Despite all the progress at the state level, this front of the drug war seems locked in a stalemate. Here’s a question: Can the Supreme Court legalize cannabis?
Of course; the US has three branches of government, and if Congress won’t legalize cannabis federally, and if President Joe Biden can’t, what about the Supreme Court? As long as the conservative majority on the John Roberts court is overturning long established precedent such as Roe v. Wade, could it overturn precedent related to cannabis prohibition? Or even the Controlled Substances Act itself?
That’s the strategy Abner Kurtin, the CEO of Ascend Wellness, one of the smaller publicly traded cannabis companies operating in multiple states, recently announced he’ll try. Already successful in generating headlines—and, possibly, satisfying investors upset with recent losses and impatient with the stalemate in Congress—the strategy could work as legal experts consulted for this article told Cannabis Now, perhaps as a mechanism to pressure Congress into action, even if the Supreme Court never touches the Controlled Substances Act.
“I want to emphasize this is politically shrewd,” said Douglas Berman, a law professor at Ohio State University and executive director of the school’s Drug Enforcement and Policy Center. “It’s useful to have a two-front war, you might say. Maybe the legislature is more likely to respond when the courts are breathing down their necks.”
But this gambit isn’t without risks. The courts could reject the challenge, resulting in more lost money at a time when legal cannabis businesses are burning cash. Or the court could impose a vision of legalization that isn’t in anyone’s best interest.
Key details, including when the lawsuit will be filed or exactly what claims it’ll make, remain to be seen. Through a spokesperson, Kurtin declined to comment.
But as he and Michael Bronstein, the president of lobbying group American Trade Association of Cannabis and Hemp explained to Marijuana Moment last month, at least six major cannabis companies will join in the suit. They will argue that the CSA is unconstitutionally applied to state-legal cannabis businesses.
And doing the arguing for them will be attorneys from prominent white-shoe law firm Boies Schiller Flexner LLP, chaired by the $1,950-an-hour SCOTUS veteran David Boies, who has famously argued several prominent cases before the nation’s top bench.
Bring on the Lobbyists
Shelling out a few million dollars on lawyers—on top of spending a fraction of that on lobbyists to change Congress’s minds—is a tactic familiar to old-school legalization advocates. This has all been done before, with varying levels of success that, in binary terms, all failed.
Various parties including federal prisoners, cannabis researchers, an ex-NFL player-turned-businessman and legalization advocacy groups have all tried to sue the federal government before—to reschedule cannabis, to deschedule cannabis. All have failed, and all but one failed to even reach the august bench of the Supreme Court.
That one, Gonzalez vs. Raich, held that Congress’s powers under the Commerce Clause—the federal government’s Constitutional ability to regulate trade between the states—“includes the power to prohibit the local cultivation and use of marijuana in compliance with” state law.
That was the “best set of facts to overturn the Controlled Substances Act you could hope for,” observed Sam Kamin, a professor of law at the Denver University Sturm College of Law and a cannabis law expert. “And they didn’t do it.”
It stands to reason that the federal government isn’t really wielding this power at the moment, at least not insofar as it did with litigant Angel Raich, a severely ill cannabis patient in California whose backyard garden was raided by DEA agents. But what Kurtin and other cannabis executives want is relief from the pressures that do exist—on the banks and the taxman.
If cannabis were descheduled, banking and taxation reform would be handled without need for Congress to legalize tax deductions and banking services. (Both the SAFE Banking Act as well as more ambitious federal legalization appear hopelessly stalled in the Senate, where 60 votes are required to even get a vote on the topic.) And companies could start shuttling cannabis in between states (although some companies don’t want that, at least not right away).
For MSOs such as Ascend Wellness, the “best possible outcome” will be a ruling that removes the federal government from cannabis entirely and leaves everything up to the states, Kamin said. The problem is that a ruling like that would also remove the federal government from any national standards around minority participation or other questions of equity—which means the legalization-minded social-justice advocates would hate it.
But again, overturning the CSA at the courts may not be the lone goal. “I think it’s part of a consistent and decades-long approach to critiquing and criticizing the CSA as not based in science, not based in the Constitution, and inconsistent with the will of the vast majority of the states and voters,” Kamin said.
So, would the courts simply leave everything up to the states, or would the courts deschedule cannabis and hand the industry over to pharmaceutical companies with the resources to get Schedule II substances through the onerous Food and Drug Administration (FDA) approval process? All are possible. “Everything is on the table right now,” Kamin said.
That includes striking down other federal powers to enforce other laws. In this, there’s a strange and dangerous irony.
In another life, a decade ago, the bugaboo of self-avowed libertarians, Ascend Wellness’s Kurtin, was the Affordable Care Act. While the Obama Administration’s Justice Department used the logic in the Raich decision to defend Obamacare from conservative challenges, Raich herself signed onto amicus briefs seeking to overturn the federal healthcare mandate. Arguments limiting the federal government’s power are more likely to be welcomed by conservative judges.
And so, if the Raich precedent is put into the dustbin of history, so could other federal powers.
“They’ve got to figure out a way to bring down federal marijuana prohibition and regulation without bringing down the whole universe of federal health and safety laws,” said OSU’s Berman. No pressure.
So, will the Supreme Court legalize cannabis? As always, time will tell.