The Justice Department is declining the opportunity to file a brief on whether the U.S. Supreme Court should take up a case from marijuana businesses that are challenging the constitutionality of federal prohibition.
In a filing submitted to the court on Monday, U.S. Solicitor General D. John Sauer, who was appointed by President Donald Trump, said simply: “The Government hereby waives its right to file a response to the petition in this case, unless requested to do so by the Court.”
This comes about a month after the powerhouse law firm Boies Schiller Flexner LLP submitted a petition for writ of certiorari from the court on behalf of their clients—a coalition of cannabis companies—who are arguing that the Commerce Clause of the U.S. Constitution precludes the federal government from enforcing criminalization laws against intrastate marijuana activity.
Massachusetts-based marijuana companies and industry leaders Canna Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings are asking justices to reevaluate a landmark 2005 case, Gonzales v. Raich, wherein the Supreme Court 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.
A lead attorney representing the plaintiffs recently told Marijuana Moment that he’s “hopeful”—albeit somewhat “nervous”—about the prospect of justices ultimately taking up the matter and deciding to address the key legal question about the constitutionality of federal cannabis prohibition.
“Time is of the essence,” Josh Schiller said, noting the dramatic shift in public opinion and state laws governing cannabis. “We think that this is the right time for this case because of the need—the industry needs to get relief from federal oversight at the moment.”
The petition companies’ petition to SCOTUS argues that the Raich decision was “an aberration” in the court’s precedents on the Commerce Clause and Necessary and Proper Clause, and represents “a drastic departure from the federalism principles those clauses embody.”
The ruling two decades ago permitted a “dramatic intrusion on the exercise of the States’ police powers,” it says.
The Controlled Substances Act’s (CSA) “significance to the exercise of the States’ police powers is massive and even greater today than it was in Raich’s time, when only nine states had legalized marijuana,” the petition says. “Thirty-eight states have now decided that the health and safety of their citizens is better served by making marijuana available through regulated channels than through prohibition. The CSA displaces those states’ choices and imposes Congress’s own views on intrastate policy. The serious federalism questions raised by that intrusion warrant the Court’s attention now, as they did in Raich.”
The petition says that after the Raich decision was issued, the federal government has “undermined the notion of any link between the CSA’s interstate goals and its intrastate prohibitions.”
Read more at Marijuana Moment
