The petitioners in Washington v. Barr, a historic lawsuit that sought to declare unconstitutional the federal law that criminalizes marijuana, received an enormous amount of support in their appeal to the U.S. Supreme Court this past September.
The lawsuit was filed in 2017 against the DEA and the U.S. Department of Justice by five plaintiffs arguing that the Schedule I classification of cannabis under the Controlled Substances Act is unconstitutional. The plaintiffs argued in their complaint that, among other things, federal prohibition of cannabis: (a) is irrational in violation of the Fifth Amendment given the federal government’s own public acknowledgements about the medical efficacy and safety of cannabis; and (b) deprives the medical patient plaintiffs of their fundamental rights to preserve their health and lives using reasonably safe and effective medical treatments available to them. The Southern District of New York dismissed the lawsuit on the absurd basis that plaintiffs first had to file a descheduling petition with the DEA before bringing their case to court — also known as “exhausting one’s administrative remedies” — even though plaintiffs showed the court that the DEA petitioning process takes an average of nine years to complete and is tainted by anti-cannabis bias. The plaintiffs appealed their case to the 2nd Circuit Court of Appeals, which, though agreeing with the plaintiffs that the petitioning process is unacceptably delayed, ultimately upheld the lower court’s decision dismissing the case because of the plaintiffs’ failure to petition the DEA first.
In June 2020, the plaintiffs (now called petitioners) filed a petition for a “Writ of Certiorari” with the U.S. Supreme Court, asking the court to hear their appeal of the 2nd Circuit’s decision dismissing their lawsuit. Although the petition was ultimately declined in October, the outpouring of support was unprecedented for an appeal of its kind.
A total of nine amicus briefs were filed in support of the appeal — a level of support received by only eight other appeals filed with the nation’s highest court since 2008 (out of the thousands of petitions filed with the U.S. Supreme Court each year). These legal briefs were submitted by seven members of Congress, 19 disparate and highly regarded organizations and two eminent cannabis researchers and scientists.
The strength and diversity of support that the Washington petitioners received is emblematic of the growing national consensus that cannabis is medically safe and effective (a fact also acknowledged by the federal government itself) and should not be federally criminalized. The “friends of the court” supporting the Washington appeal include individuals, companies and organizations from all walks of life with varying interests in the appeal’s success. The legal arguments and stories set forth in the amicus briefs, each compelling in their own right, are collectively a powerful indictment of the federal government’s egregious criminalization of a plant that has been safely used by civilizations all over the world for more than 10,000 years. Here is a summary of the most salient arguments made in each of the nine amicus briefs filed in support of the Washington petitioners’ appeal.
The Congressional Brief
This brief, prepared by Michael B. de Leeuw and Tamar S. Wise of Cozen O’Connor, was submitted on behalf of seven U.S. Representatives: Earl Blumenauer (Oregon), Tulsi Gabbard (Hawaii), Jared Huffman (California), Barbara Lee (California), Alan Lowenthal (California), Mark Pocan (Wisconsin) and Jamie Raskin (Maryland). The Representatives’ interest in the Washington appeal stems from the unfair burdens that federal prohibition has placed upon their constituents, who as a result of such prohibition, have been deprived of the “right to take life-saving medical care, the right to cross state lines with a medical cannabis prescription valid in the originating state, and even the right to access vital government financial assistance during a pandemic despite operation of state-legal cannabis-related businesses.”
The Representatives argue, among other things, that continued classification of cannabis as a schedule I drug under the Controlled Substances Act is irrational because (a) Congress, in enacting the law, provided that the classification of cannabis would be temporary and regularly reviewed pursuant to updated medical and scientific data; (b) much of the available data relating to cannabis (including that presented by President Richard Nixon’s Shafer Commission and that contained in the federal government’s own medical cannabis patent applications) demonstrates cannabis’s medical efficacy and safety and provides ample support for decriminalizing cannabis; and (c) such data has been completely ignored by both the DEA and Congress for decades.
They further argue that, as a consequence of the irrational federal ban on cannabis, medical patients and market participants of all stripes have been harmed by federal prohibition. For example, they point out that employees treating with medical cannabis, who are discriminated against in their workplaces for such use, have little legal recourse because medical cannabis use is not protected under the Americans with Disabilities Act as a consequence of cannabis’s illegality under federal law. They also point out that veterans who use medical cannabis have been arrested and otherwise deprived of their rights and entitlements under law.
The Representatives persuasively argued that the court should hear the Washington appeal despite the theoretical existence of legislative or administrative solutions to federal prohibition because Congress’s decades-long inaction in this area makes clear that a legislative solution is “nearly impossible,” and the DEA is ill-equipped to resolve constitutional claims.
The ASA Brief
This brief, prepared by Andrew Kim and Brett M. Schuman of Goodwin Procter LLP, was submitted on behalf of Americans for Safe Access (ASA), “the nation’s largest member-based organization of patients, medical professionals, scientists, and concerned citizens working to promote safe and legal access to cannabis for therapeutic use and research.”
ASA’s interest in the Washington appeal is rooted in resolving the issue of whether there is a fundamental right under the U.S. Constitution to treat with medical cannabis, particularly when 38 states and territories have in some way legalized medical and/or adult-use cannabis, indicating a broad national recognition of cannabis’s safety and medical efficacy.
In arguing that there is a fundamental right to treat with medical cannabis, ASA explains that only the courts, and not the DEA, may properly determine the petitioners’ constitutional claims. In particular, ASA contends that the lower courts in Washington wrongly dismissed the case on the ground that petitioners should first have petitioned the DEA to deschedule cannabis before bringing their lawsuit, because in doing so, the lower courts “rewrote petitioners’ claims and changed them from constitutional claims outside of DEA’s expertise to a statutory one within the agency’s ambit.”
Elaborating upon the distinction between petitioners’ constitutional claims and a claim requiring DEA review, ASA provides: “petitioners’ claim is not that cannabis should be decriminalized. Rather, it is that the majority of States have already made policy determinations that Americans should have access to the safe and effective medical use of cannabis, and that those determinations now give rise to a substantive due process right to the use of cannabis for medical treatment. Courts, and not DEA, have expertise in recognizing such constitutional rights.”
ASA further asserts that by improperly reframing petitioners’ claims in this manner and subjecting constitutional questions to administrative review, the 2nd Circuit in Washington exacerbated an existing “split” — meaning a disagreement in the law — between federal circuit courts on the issue of whether an administrative agency may address constitutional challenges, requiring the U.S. Supreme Court to intervene. ASA concludes by arguing that, notwithstanding the federal government’s non-enforcement approach to the Controlled Substances Act in recent years, millions of Americans are nevertheless harmed by myriad conflicts in state and federal cannabis laws, as reflected, for example, by federal employees having lost their jobs due to medical cannabis use and federally-funded health care providers being prohibited from recommending medical cannabis to patients.
The Last Prisoner Project Brief
This brief, prepared by Gary Weinstein, Eliyahu S. Scheiman and Matthew J. Donohue of Porzio, Bromberg & Newman, P.C., was submitted on behalf of the Last Prisoner Project, a nonprofit organization that “advocates for individuals sentenced for nonviolent marijuana offenses, as well as for those still suffering the collateral consequences of a marijuana offense on their criminal record.”
The Last Prisoner Project’s interest in the Washington appeal stems from the organization’s commitment to ending “the over-policing of low-income and minority neighborhoods, and the disproportionate social, economic, and civil disenfranchisement of communities of color [which] are [necessarily] intertwined with a national policy of federal marijuana illegality.”
The Last Prisoner Project demonstrates the absurdity and futility of requiring administrative exhaustion through the DEA petitioning process when the DEA does not consider scientific studies accepted by the majority of state legislatures across the country in determining whether cannabis has a currently accepted medical use in the United States. Indeed, the DEA has routinely accepted only research performed by the National Institute on Drug Abuse — an agency permitted to conduct cannabis research using only cannabis grown by the University of Mississippi. Yet, the university is “the sole, limited, DEA registered Schedule I cultivator” of cannabis, restricting access to research as well as diminishing the quality and diversity of the plants being studied.
The Last Prisoner Project further notes that after decades of repeatedly denying cannabis rescheduling petitions, the DEA summarily denied yet another cannabis rescheduling petition brought by Scottsdale Research Institute in January 2020, reaffirming that the legal status of cannabis has already been pre-determined by the only agency authorized to make it.
And if that were not enough evidence of the DEA’s anti-cannabis bias, the Last Prisoner Project also highlights recent statements made by Alex Azar, the secretary of the U.S. Department of Health and Human Services, including his erroneous conclusions that cannabis is “dangerous,” “addictive” and purportedly “linked to risk for and early onset of psychotic disorders, such as schizophrenia.”
Finally, the Last Prisoner Project argues that one of the most harmful repercussions of the DEA’s failure to act in this arena, requiring the U.S. Supreme Court review of the Washington appeal, is how federal prohibition exacerbates “disparities within the justice system, from policing to incarceration” and the disproportionate impact of the War on Drugs on communities of color. In demonstrating how legalization could uplift harmed communities of color and reduce disparities in policing and incarceration, the Last Prisoner Project argues that states that have legalized cannabis “have consistently experienced significant reductions in marijuana arrests and significant increases in job creation and tax revenues.”
The MCBA/M4MM Brief
This brief, prepared by William Bogot, Joseph Collins and Alexandra Sobol of Fox Rothschild LLP, was submitted on behalf of the Minority Cannabis Business Association (MCBA) and Minorities for Medical Marijuana Inc. (M4MM). MCBA is a nonprofit organization that serves the needs of “minority cannabis entrepreneurs, workers, patients, and consumers” by creating equal access and promoting economic empowerment for communities of color in the legal cannabis industry, with a focus on achieving equity for victims of the War on Drugs. MFMM is a nonprofit organization “focused on advocacy and education in support of minorities who have a vested interest in cannabis public policy, business, healthcare access, and social impact.”
Their interest in the Washington appeal arises from their commitment to “dismantling systemic discrimination in the cannabis industry” and their desire to address the racial and discriminatory animus underlying federal prohibition of cannabis under the Controlled Substances Act and the inherent bias within the DEA’s petitioning review process. They argue that the classification of cannabis under Schedule I of the Controlled Substances Act violates the “equal protection component” of the Fifth Amendment, which “prohibit[s] the United States from invidiously discriminating between individuals or groups.” To that end, they argue that the Nixon administration was motivated to criminalize cannabis by a desire to target African-Americans and Vietnam War protestors through the use of seemingly neutral legislation, and they point to statements made by Nixon himself and members of his administration as proof of such “invidious discrimination.” Finally, they argue that the lower courts erred in requiring the Washington petitioners to petition the DEA before filing their lawsuit because the inherent anti-cannabis bias of that agency renders the review process futile. They demonstrate such bias by pointing to, for example, recent congressional testimony by a Department of Justice employee, who testified to Congress that Attorney General William Barr’s personal opposition to the cannabis industry was the reason he directed “improper antitrust investigations into multiple cannabis company mergers — accounting for nearly one-third of the division’s cases in 2019.”
The INCBA Brief
This brief, prepared by David Cohen of CohenSciences and Paul P. Josephson and Robert M. Palumbos of Duane Morris LLP, was submitted on behalf of the International Cannabis Bar Association (INCBA). INCBA is a membership association of more than 700 attorneys, advancing the interests of its members and thousands of other attorneys located across the country and in foreign jurisdictions. INCBA’s interest in the Washington appeal “arises out of its members’ ethical obligations to zealously represent their clients in a shifting legal landscape devoid of clarity.” INCBA, like many of the other amici, argued that the U.S. Supreme Court should hear the appeal because administrative exhaustion shouldn’t have been required by the lower courts. In that regard, it argues that the lower courts disregarded their “virtually unflagging obligation” to exercise judicial jurisdiction because the Washington petitioners’ “interests in securing prompt judicial review of [their] claims outweigh the institutional interests of the administrative agency.” In particular, INCBA states that the DEA’s petitioning process is fraught with anti-cannabis bias, is institutionally incapable of resolving issues of constitutional import and is so unduly delayed as to prejudice the petitioners (the majority of whom are medically fragile patients).
Finally, INCBA illuminates for the U.S. Supreme Court what is at stake for millions of Americans and tens of thousands of cannabis businesses by identifying examples of how state-compliant cannabis market participants could be harmed by the legal uncertainties surrounding cannabis, including: (a) the DEA and other federal agencies’ weaponization of federal prohibition of cannabis to “discourage hospitals and universities from researching cannabis upon pain of losing federal funding” and “preclude veterans from consuming cannabis if they wish to receive benefits from the Department of Veterans Affairs”; (b) the position of the Executive Office for U.S. Trustees “that individuals and companies deriving income from state-authorized cannabis activities may not have access to the nation’s bankruptcy courts”; (c) the potential for prohibiting application of the attorney-client privilege “under the crime-fraud exception to federal evidentiary rules”; (d) the refusal of the Trademark Department of the U.S. Patent and Trademark Office (USPTO) to “issue trademark protection to certain categories of goods and services based on the differentiation between industrial hemp under the 2018 Farm Bill and marijuana under the CSA” despite the USPTO’s acknowledgement of cannabis’s medical efficacy and safety in its approval of the federal government’s patents on medical cannabis; (e) the potential for wielding civil RICO statutes against state-licensed cannabis companies and non-cannabis businesses that work with them; and (f) the potential that attorneys advising cannabis industry participants could face discipline under professional ethics rules despite the sanctioning of such work by numerous ethics opinions.
The NCIA/Arcview Brief
This brief, prepared by Ian A. Stewart, Melissa A. Murphy-Petros and Neil M. Willner of Wilson Elser Moskowitz Edelman & Dicker, LLP, was submitted on behalf of the National Cannabis Industry Association (NCIA) and the Arcview Group. The NCIA is the largest cannabis trade association in the United States, representing more than 1,000 member businesses and tens of thousands of cannabis professionals, with the goal of creating a responsible and legitimate cannabis industry. Arcview is the cannabis industry’s “oldest and largest investor network” composed of more than 1,000 individual investors who have invested $300 million into cannabis startups across the country. Their interest in the Washington appeal is rooted in their desire to ensure the “responsible and legal development of a sustainable cannabis industry in the United States, as well as in protecting the constitutional rights of their member constituents, patients and consumers.” They contend that the lower courts’ dismissal of the Washington lawsuit on administrative exhaustion grounds was erroneous because petitioners cannot obtain the relief they seek — including a declaration that the Schedule I classification of cannabis under the Controlled Substances Act is unconstitutional — from the DEA.
They argue that because the DEA claims that the United States’ international treaty obligations allow it to only reschedule cannabis to Schedule II, the lower courts erred in subjecting petitioners to a review process, that if successful, would cause more harm to petitioners (and Americans throughout the country) than the status quo. Indeed, according to these amici, a Schedule II classification of cannabis would subject the plant to U.S. Food and Drug Administration approval, thereby crippling and destroying the 38 state-legal industries that exist today. Specifically, these amici argue that a Schedule II classification of cannabis would wreak havoc on the state legal industries by: (a) making it difficult for medical patients to access cannabis as a prescription drug that would have to be regulated by the FDA, and thereby subject to lengthy and expensive clinical trials; (b) resulting in the “loss of hundreds of thousands of jobs” when businesses fail as a result of rigorous and costly new regulations; (c) resulting in the loss of “billions of dollars in needed tax revenue” because of rigorous federal regulations, making it impossible for many businesses to comply and continue their operations; (d) destroying social equity and social justice programs created as part of state legal industries across the country; and (e) expanding rather than eliminating the illicit cannabis market where access to state-legal cannabis to become highly restricted by new federal regulations.
The NORML Brief
This brief, prepared by Andrew P. Schriever of Cuddy & Feder LLP and David C. Holland of the Law Offices of David Clifford Holland, P.C., was submitted on behalf of the National Organization for the Reform of Marijuana Laws (NORML) and Empire State NORML (two affiliated nonprofit organizations whose missions consist of advocating for policy changes to end the criminalization of responsible cannabis possession and use), the New York City Cannabis Industry Association and Hudson Valley Cannabis Industry Association (two affiliated nonprofit organizations that “foster dialogue, develop policy and rules for the self-governance of the anticipated cannabis market” in the region) and the New York Cannabis Bar (an unincorporated think tank focused on challenging the classification of cannabis under the federal Controlled Substances Act).
Their interest in the Washington appeal stems from their commitment to fighting for sensible and consistent cannabis laws and policies at a time when federal cannabis policies, which contradict the federal ban of cannabis under the Controlled Substances Act, can be reversed without warning, detrimentally harming petitioners and millions of Americans who have reasonably relied upon state-legal markets. The amici argue, among other things, that the court must intervene here because the DEA petitioning process is entirely futile as evidenced by the agency’s statement “that it believes it is constrained from any evaluation that would move cannabis to anything less than Schedule II.”
The Athletes for Care Brief
This brief, prepared by Hon. Anthony J. Mellaci Jr., Joshua Bauchner and Rahool Patel of Ansell Grimm & Aaron, P.C., was submitted on behalf of Athletes for Care, After the Impact Fund, NFL Sisters in Service Inc., Canna Research Foundation and ISIAH International, LLC. Their interest in the Washington appeal stems from the fact that “many of their members and others similarly situated have depended on medical cannabis” as life-saving and health-preserving treatment, but have been harshly penalized for doing so by professional sporting leagues that impose draconian drug policies because of federal prohibition. They argue that the lower courts’ dismissal of this case on administrative exhaustion grounds was improper and failed to appreciate not only the irrationality of the DEA and Congress’s treatment of cannabis over the past five decades (especially in light of recent FDA approval of Epidiolex). They also point to the significant harm that professional athletes, in particular, must face when presented with a Hobson’s Choice of preserving their health and lives at the risk of federal prosecution and losing their careers, or imperiling their health and life in order to keep their jobs and comply with federal law. They illustrate these Hobson’s Choices with anecdotal stories of, among others: (a) Darren McCarty, a former NHL star, was forced to relieve his pain from game-related injuries using strong prescription drugs (mixed with alcohol) because of the league’s prohibition of medical cannabis at the time, but after discovering in 2015 that he was on the “verge of multiple organ failure and at high risk of death,” he switched to medical cannabis which “he credits with saving his life and helping him quit drinking”; and (b) Kyle Turley, a former NFL player suffering from Stage 2 progressive dementia, who went from 12 prescriptions daily to none with the help of medical cannabis. Turley “believes that his sporting career would have lasted longer and he would have had fewer health issues in retirement if medical cannabis had been available to him and other players during his career.”
The CreDO/AJEM Brief
This brief, prepared by David Kotler, Garrett Graff and others at Hoban Law Group, was submitted on behalf of CReDO Science, the American Journal of Endocannabinoid Medicine (AJEM), Ethan Russo, MD and Jahan Marcu, Ph.D. These preeminent cannabis researchers have an interest in the Washington appeal because there are public health risks associated with federal prohibition insofar as “Schedule I status prevents researchers from conducting marijuana research to gather medical and scientific data” prohibiting U.S.-based researchers from studying “the benefits and risks of marijuana use, to explore potential uses, and innovate solutions.” They argue that “as more state-legal marijuana markets emerge, and as the spectrum of available marijuana products diversifies,” comprehensive research is necessary to develop “uniform public health standards and rules to ensure public safety.”
They further contend that researchers are hamstrung by the requirement, imposed by a Schedule I classification under the Controlled Substances Act, to obtain certain specified approvals from the DEA. According to the amici, the required DEA approvals impose burdens upon researchers who must submit to: (a) DEA spot inspections, “which disrupt researcher and physician schedules and patient care”; (b) lengthy documentation procedures; and (c) “onerous storage requirements [that] mirror those for highly radioactive or infectious materials.” As the amici make clear, removing cannabis from the Controlled Substances Act entirely, and liberating restrictions upon researchers, “would allow … researchers to efficiently and safely conduct studies that include a representative array of marijuana products … [and] guide the rulemaking process regarding specific concerns (such as labeling, advertising, and packaging).” Notably, the amici caution against the notion that rescheduling cannabis to a lower schedule would resolve the current research shortage caused by the Schedule I classification of cannabis, citing statements made by legalization opponents who have conceded that a Schedule II classification of cannabis would not “open the floodgates for research” and that descheduling cannabis could be “our best chance to actually dedicate resources toward consumer safety, abuse prevention, and treatment for those who need it.”
To read any of the amicus briefs in full, go to http://www.hillerpc.com/press-release-amicus-briefs-for-supreme-court-petition/#links-amicus-briefs.