The U.S. Supreme Court granted a request that marijuana companies who are suing the Justice Department to try to end federal prohibition have two additional months to submit their petition to the justices.
The cannabis companies’ lawyers said that the court extension is needed because of the “significant constitutional issues that have been raised” in this case. They also stated that the state governments, and any other experts that plan to submit support briefs will need additional time to “carefully formulate 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 granted the request on Friday. The current deadline for submitting the writ of certiorari is August 25, but the new date will be October 24, according to the firm.
In the companies’ request, it was noted that the Office of the Solicitor General did not oppose the extension.
Three reasons were given for this request. 1) The lead attorney in the case is David Boies who has “a lot of work to do” with other cases before the federal court. 2) Several experts that expressed an interest in assisting their lawsuit by submitting amicusbriefs said they needed more time. 3) There are complex issues in the case which require a more thorough consideration.
In the document, it is stated that the case “presents complex and significant constitutional issues relating to both the state regulation of marijuana and Congress’s authority to regulate only intrastate trade in general.” This extra time will allow counsel to create a petition which appropriately addresses questions that are of national importance.
This includes the question “whether or not?” [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.
In relation to the future amicus shorts that the applicants expect, the statement said, “counsel has heard from law faculty, non-profits state governments and other interested parties in submitting an amicus in these proceedings. And several of these possible amici have voiced concern over having enough time in the summer to prepare.”
The filing states that “An extension would allow potential amici ample time to carefully consider and craft their arguments.”
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. It’s well known that plaintiffs’ lawyers have long wanted the case to be heard by the nine Supreme Court justices.
Jonathan Schiller said to MEDCAN24 that “it’s safe to assume we will seek Supreme Court Review” in June.
In the latest filing, the respondents state that they “will not be prejudiced by the extension requested” and “because the First Circuit has affirmed the dismissal Applicants’ claim…a brief extension won’t in any way change the status quo.”
Clarence Thomas’ 2021 declaration, made as the Colorado Medical Marijuana Dispensary dispute was denied by the Colorado Supreme Court, is one indication that some of the judges might be interested.
Thomas’s remarks seemed to indicate that it would be appropriate to revisit Raich—a move that could largely upend federal prohibition.
In the statement, the Department of Justice referred to recent policy development since the previous case. These include the Department of Justice’s approach of not enforcing cannabis laws as more and more states have legalized it. It also referred to a federal budget amendment that protects state-legal medical pot programs.
Whatever their benefits, 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, “strains fundamental principles of federalism” and contains traps that are hidden for those who do not know better.
The Supreme Court will hear the case if four Justices vote in favor of it.
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] The Constitutional authority of the United States Congress to regulate is undermined. InterlanguageState commerce
The Judges were, however, “unpersuaded” and ruled in their opinion of last month that “the CSA still remains intact in terms of regulation for commercial activities involving marijuana, including those carried out by the appellants.
In the meantime, the district court said that, while there were “persuasive” reasons to reexamine the cannabis’ current classification, it was effectively bound by precedent of the U.S. Supreme Court in Raich.
The Trump administration, in the midst of a number of legal challenges has recently requested that the Supreme Court take on a case regarding the federal government’s prohibition on marijuana users and others illegal drugs owning guns and to uphold this prohibition. They claim it’s consistent with the Second Amendment.
At the federal level, a recommendation made by Biden to reschedule cannabis to Schedule III (the less restrictive version of CSA) is still pending.
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.
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