The U.S. Supreme Court has granted a request to give marijuana companies suing the Justice Department in an effort to overturn federal prohibition two more months to file their petition with the justices.
Lawyers for the cannabis firms said the extension was needed due to the “significant and complex constitutional issues” that are being raised in the case, as well as the fact that state governments and other experts who plan to file support briefs need more time to “carefully craft their arguments.”
The prominent litigation firm Boies Schiller Flexner LLP that’s representing the companies—Canna Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings—entered a request for a 60-day extension to submit its writ of certiorari last week. Justice Ketanji Brown Jackson approved the proposal on Friday, pushing back the current deadline of August 25 to October 24.
The companies’ request noted that counsel for the Office of the Solicitor General don’t oppose the extension.
The brief gave three reasons for the request: 1) the lead attorney on the case, David Boies, is “heavily engaged in previously scheduled matters” before other federal courts, 2) several experts who expressed interest in supporting their lawsuit with amicus briefs have said they need more time and 3) the case involves complex legal issues that require more in-depth consideration.
“This case presents significant and complex constitutional issues concerning both state-regulated marijuana specifically and the authority of Congress to regulate purely intrastate commerce generally,” the filing says. “The additional time will permit counsel to prepare a petition that appropriately addresses the questions of nationwide importance raised by this case.”
That includes “the question of whether [Gonzales v. Raich] was correctly decided,” it says, referencing a landmark 2005 Supreme Court ruling, wherein justices 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.
With respect to future amicus briefs the applicants are expecting, they said “counsel have heard from law professors, non-profits, state governments, and others interested in submitting amicus briefs in these proceedings, and several of these potential amici have expressed concern about having sufficient time to prepare over the summer.”
“An extension will provide potential amici adequate time to consider the case and carefully craft their arguments,” the filing says.
This comes about three months after a U.S. appeals court rejected the arguments of the state-legal cannabis companies, one the latest blow 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 justices.
“It’s fair to assume that we shall seek Supreme Court review,” attorney Jonathan Schiller told Marijuana Moment in June.
The latest filing concludes by saying respondents “will not suffer any prejudice from the requested extension,” and because “the First Circuit affirmed the dismissal of Applicants’ claims, a brief extension will not in any way alter the status quo of this case.”
While it remains to be seen whether the high court 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 seemed to suggest that it’d be appropriate revisit Raich—a move that could largely upend federal prohibition.
The statement pointed to policy developments since the earlier case was decided, such as the hands-off enforcement approach taken by the Department of Justice as more states legalized cannabis and a congressional budget rider protecting state-legal medical marijuana programs.
“Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning,” Thomas wrote, describing the government’s approach to cannabis enforcement as “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
“Though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich, has sent mixed signals on its views,” the justice continued, saying the situation “strains basic principles of federalism and conceals traps for the unwary.”
Once plaintiffs in the case at hand file their forthcoming petition for a writ of certiorari, it would need needs the votes of four justices to put the case before the Supreme Court.
The initial complaint, filed in U.S. District Court for the District of Massachusetts, argued that government’s ongoing prohibition on marijuana under the Controlled Substances Act (CSA) was unconstitutional because Congress in recent decades had “dropped any assumption that federal control of state-regulated marijuana is necessary.”
At oral argument on appeal late last year, 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.”
Judges, however, said they were “unpersuaded,” ruling in last month’s 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 the 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.
Meanwhile, amid a series of legal challenges, the Trump administration recently asked the Supreme Court to take up a case on the federal government’s ban on users of marijuana and other illegal drugs from owning firearms and uphold the prohibition, saying it is consistent with the Second Amendment.
Separately at the federal level, a pending Biden-era recommendation to reschedule marijuana to the less restrictive Schedule III of the CSA is remains stalled.
The MAGA world is divided on how it wants President Donald Trump to come down on that proposal, with key right-wing influencers voicing conflicting positions on the issue after the president announced an imminent decision last week.
While Trump endorsed moving marijuana to Schedule III during last year’s presidential campaign—along with cannabis industry banking access and a Florida legalization ballot initiative that ultimately fell short—last week he merely said he is considering the issue, with a decision expected within weeks.
The overall bipartisanship of the issue, however, was also reflected in recent comments from one Democratic and one Republican member of Congress, who urged Trump to federally reschedule marijuana.
A new political committee that shares the same treasurer as Trump’s own super PAC is also pushing the president to follow through on rescheduling marijuana, releasing an ad that highlights his previous endorsement of the reform on the campaign trail.
Photo elements courtesy of rawpixel and Philip Steffan.
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