A lead attorney representing marijuana businesses in a case that’s pending consideration by the U.S. Supreme Court says he’s “hopeful”—albeit somewhat “nervous”—about the prospect of justices taking up the matter and ultimately deciding to address a key legal question about the constitutionality of federal cannabis prohibition.
Boies Schiller Flexner LLP, a powerhouse firm of lawyers, filed a writ certiorari petition on behalf their clients last month. Their argument was that the Commerce Clause, which is part of the U.S. Constitution, prevents federal law enforcement from enforcing laws criminalizing intrastate cannabis activities.
Massachusetts marijuana companies, including industry leaders Canna Provisions and Gyasi Sellers as well as Wiseacre Farm, Verano Holdings and Verano Farm, are asking the justices to revisit a 2005 landmark 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.
Josh Schiller, along with his partner partners, sees an opportunity for another historic case that may help resolve the state and federal marijuana policy conflict.
Schiller, who spoke to MEDCAN24 Thursday about the rapid shifts in state and public laws governing marijuana, said that “time is crucial.” “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.”
A U.S. appeals court rejected the arguments of the state-legal cannabis companies the firm is representing in May. The ruling was the latest in a series of blows dealt to the prominent lawsuit, following the dismissal by a lower-court court. The plaintiffs legal team had long intended to bring the matter before nine Supreme Court justices.
To take the case up, four justices will need to vote in favor of accepting the cert petition. Next, the Department of Justice must file their initial brief by the current deadline of November 28.
Schiller talked to MEDCAN24 to discuss his hopes for the Cannabis case and why justices may be inclined to hear it. Interview has been edited slightly for clarity.
MEDCAN24 : Do you think that now is the best time to pursue this case before SCOTUS?
Josh Schiller: In the last 25 Years, I believe that this decision was made. [Gonzales v. Raich] has been sort of hanging around as an outlier—and I think that that’s captured in our petition. We’ve argued that this was an anomaly and we should take action now because the incredible growth of the sector.
We think this court could also find the decision to be wrongly made at the time of the ruling. The court might decide that another test or constitutional analysis is needed. We also think the stigma and facts about weed are gone. Generally, the stigma is gone. More than 38 states have legalized it. The product is accepted and regulated in each state, with more than half the population consuming it.
It is important to act quickly. Our country believes weed is safe—no longer believes it’s stigmatized, or a so-called gateway drug. I was always taught that the Supreme Court often evolves with with our culture, and old norms and misconceived notions drift away as our culture evolves, and 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.
What makes you confident that the justices will eventually take on this case?
JS: If you’re going to use a word like ‘confidence,’ then I’m more nervous than I am confident, to be honest. We’re ‘hopeful’ is the word I would use.
We think, intellectually, we’ve raised a valid argument—and we think, intellectually, we’ve put together a case that allows the court to overturn that prior decision and to really get rid of an outlier case involving a really, really important area of the Constitution.
Of course, there’s a whole host of events in this country right now, which are, in fact, unprecedented, in terms of how executive powers are being used. This is ironic. It’s ironic. When we first filed the case, we never imagined that liberal state attorneys general would bring suit after lawsuit to remove federal authority in inner city areas. That’s exactly what is happening. Maybe this will get all nine Justices’ attention.
Regardless, we’re hopeful that the ideological core of the conservative group that is the majority of the court still considers federalism to be a really important area of of our constitutional analysis and application of those principles that our founders held so so highly—and the interplay between the federal police power and the states to regulate themselves is one of the most important cornerstones of the Constitution.
This case is saying, ‘look, let’s re-examine how we’ve had jurisprudence on this issue in the past, and let’s correct it, because a bad decision has had an impact for the last 10 years on this industry, and this complaint helps demonstrate that.
How might your case be affected if the Trump Administration moves ahead with its proposal to reschedule marijuana?
JS: That wouldn’t change the importance, intellectually speaking, of our argument about the fundamentals of this cornerstone principle of the Constitution—the Commerce Clause—I don’t think it would impact their decision to take the case on it at all.
The industry will be relieved. If it was so terrible how it was rolled out so slowly—and the last administration did nothing to get it done, which is terrible—my expectation is that this administration is just going to do nothing, too.
This is unfortunate because, if we think about it now, this issue has become bipartisan. This is not an issue that only affects red states or blue states. Congress and the government should take immediate action to correct a situation that has a negative effect. It shocks me that that hasn’t happened, but I’m hopeful that it will—but I don’t think, even if it were to happen, it would have an impact.
MM. SCOTUS accepted a recent case regarding the federal gun ban for people who smoke marijuana. Are you encouraged by the fact that the justices accepted a case similar to yours?
JS: They’re claiming that the law will be overturned [the ban] Right? This has disastrous implications for our case, if the people who oppose federal police powers think it doesn’t matter that this interferes with their constitutional rights to own a firearm.
The Second Amendment has unfortunately been the subject of many controversial decisions in the United States over the past few decades. These decisions seem to be based on outcome, rather than being logical. The Second Amendment is a fundamental principle that has nothing to do with marijuana.
It was always the plan to appeal lower court decisions that were not in your favor and bring this case before the Supreme Court. Could you elaborate on that strategy?
JS: It’s not like we wanted to lose. It was our hope to make it to the Supreme Court so that we could overturn the case before us. And now, here we are.
In the district court, we thought that we had a good opportunity to record a case. We did. The record now comes up for appeal. This was a very efficient approach, as we avoided months of litigation and discovery, and went directly to the appellate court. So we got here much faster than we, frankly, expected to—and we got a good record out of it.
It was a great relief to us that the record had been made in district court. We also have a record from the appellate court. Now we can argue with efficiency the merits to overturn the ruling. Gonzales v. Raich.
Philip Steffan provided the photo.