A group of marijuana businesses has petitioned the U.S. Supreme Court, asking them to review their challenge of the constitutionality and federal prohibition.
Boies Schiller Flexner LLP – the firm representing the company – filed a petition on certiorari for the writ about two months ago, after the court had accepted the application to extend the deadline.
The case from Massachusetts-based marijuana companies and industry leaders—Canna Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings–argues that the Commerce Clause of the U.S. Constitution precludes the federal government from enforcing criminalization laws against intrastate cannabis activity.
They want 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.
The Supreme Court’s new petition asserts that Raich was an “aberration” of the precedents set by the court on the Commerce Clause (and Necessary & Proper Clause) and “a radical departure from the federalism principle those clauses embody.”
It says that the ruling of two decades back allowed a “dramatic interference in the exercise by the states’ police power.”
According to the petition: “The Controlled Substances Act is of even greater importance today, than when Raich was alive and only nine states legalized marijuana, in terms of exercising the police powers by the state,” Thirty-eight state governments have decided that regulating marijuana distribution is better for the safety and health of citizens than prohibiting it. CSA imposes Congress’s views and replaces the choices made by states. “The serious questions of federalism raised by this intrusion deserve the Court’s immediate attention, just as in Raich.”
According to the petition, after the Raich ruling was released by the federal government, it “undermined any notion that there is a link between CSA interstate goals and intrastate prohibitions.”
Since 2014, Congress has prohibited enforcement of state-regulated medical cannabis but not against adult-use marijuana. (Both remain illegal under the CSA). Federally, state-regulated medical cannabis is less regulated than Schedule V substances, which are the most restricted. The DOJ has taken non-enforcement even further, with a policy of not enforcing the CSA as to either state-regulated medical or adult-use marijuana… This long period of desuetude has severed any link between controlling state-regulated marijuana and regulating interstate commerce, thereby rendering the CSA’s intrusion on the States’ policymaking even more stark.”
In May, a U.S. appellate court dismissed the arguments made by the cannabis businesses operating in states that have legalized the drug. The ruling was one of many blows dealt to the lawsuit, which had been thrown out by a lower-court. It’s well known that plaintiffs’ lawyers have long wanted the case to be heard by the nine justices of the high court.
In order to hear the case, the Court must accept the cert petition of four Justices.
Clarence Thomas made a statement in 2021, when the Colorado court refused to review a dispute involving a medical marijuana dispensary.
Thomas’s remarks at the time suggested it would be appropriate to revisit Raich—a move that could upend federal prohibition.
Statements cited policy changes since the case in question was heard, including the Department of Justice’s hands-off approach to enforcement as states began legalizing cannabis. Also mentioned were a budget rider by Congress protecting medical marijuana programs that are approved by state laws.
Whatever their merits, Raich Thomas wrote: “When it was made, the federal policies that have been in place for the past 16 year undermined this reasoning.” He called the government’s cannabis enforcement policy a “half-in-half-out” regime, one which both tolerates and prohibits the local use of marijuana.
“Though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich. has given mixed signals about its positions,” the judge continued. The situation, he said, “distorts federalism’s fundamental principles and hides traps that are dangerous to those who do not know better.”
The original complaint, now called Canna Provisions v. Bondi and filed at the U.S. District Court for the District of Massachusetts argued the ongoing government prohibition of marijuana, under the Controlled Substances Act, was unconstitutional since Congress had in recent years “dropped the assumption that federal regulation of state-regulated cannabis is necessary.”
At oral argument on appeal late last year, David 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] The Constitutional authority of the United States Congress to regulate is undermined. You can also read more about it here.State commerce
Boies, who is chairman of the law firm, had many clients before, such as the Justice Department and former Vice President Al Gore. He also represented plaintiffs involved in an invalidation case of California’s same-sex ban.
Despite this, judges were unpersuaded, ruling “that the CSA remains intact in terms of regulation for commercial activities involving marijuana that is not used medically, and which by the appellants’ own admission are engaged in.”
In the meantime, the district court said that although there were “persuasive” reasons to reexamine the cannabis’ current classification, it was effectively bound by precedent from the U.S. Supreme Court. Raich.
It comes against the backdrop of an upcoming marijuana rescheduling from the Trump Administration. In late August, President Donald Trump stated that he would make a decision about moving marijuana to Schedule III under the CSA in upcoming weeks. He has yet to take action.
This week, the Supreme Court decided to take up a case that concerns the constitutionality of federal laws prohibiting the purchase or possession of firearms by people who have used marijuana or any other drug. Trump’s administration claims that this policy is necessary because it “targets persons who are clearly at risk of misusing firearms”.
Below is the Supreme Court’s petition: