A great dark cloud hangs over the bright and sunny success of marijuana legalization in the US: federal law, which still declares cannabis an outlaw plant. This status quo causes great distress to American cannabis businesses and those still in federal prisons for marijuana offenses. Despite all the progress at the state level, this front of the drug war seems locked in a stalemate. Here\u2019s a question: Can the Supreme Court legalize cannabis?<\/p>\n
Of course; the US has three branches of government, and if Congress won\u2019t legalize cannabis federally, and if President Joe Biden can\u2019t, what about the Supreme Court? As long as the conservative majority on the John Roberts court is overturning long established precedent such as Roe v. Wade, could it overturn precedent related to cannabis prohibition? Or even the Controlled Substances Act itself?\u00a0<\/p>\n
That\u2019s the strategy\u00a0Abner Kurtin, the CEO of Ascend Wellness, one of the smaller publicly traded cannabis companies operating in multiple states, recently announced he\u2019ll try. Already successful in generating headlines\u2014and, possibly, satisfying investors upset with recent losses and impatient with the stalemate in Congress\u2014the strategy could work as legal experts consulted for this article told\u00a0Cannabis Now<\/em>, perhaps as a mechanism to pressure Congress into action, even if the Supreme Court never touches the Controlled Substances Act.<\/p>\n \u201cI want to emphasize this is politically shrewd,\u201d said\u00a0Douglas Berman<\/a>, a law professor at Ohio State University and executive director of the school\u2019s Drug Enforcement and Policy Center. \u201cIt\u2019s useful to have a two-front war, you might say. Maybe the legislature is more likely to respond when the courts are breathing down their necks.\u201d<\/p>\n But this gambit isn\u2019t without risks. The courts could reject the challenge, resulting in more lost money at a time when legal cannabis businesses are burning cash. Or the court could impose a vision of legalization that isn\u2019t in anyone\u2019s best interest.<\/p>\n Key details, including when the lawsuit will be filed or exactly what claims it\u2019ll make, remain to be seen. Through a spokesperson, Kurtin declined to comment.\u00a0<\/p>\n But as he and Michael Bronstein, the president of lobbying group American Trade Association of Cannabis and Hemp\u00a0explained to Marijuana Moment<\/a>\u00a0last month, at least six major cannabis companies will join in the suit. They will argue that the CSA is unconstitutionally applied to state-legal cannabis businesses.\u00a0<\/p>\n And doing the arguing for them will be attorneys from prominent white-shoe law firm Boies Schiller Flexner LLP, chaired by the $1,950-an-hour SCOTUS veteran David Boies, who has famously argued several prominent cases before the nation\u2019s top bench.<\/p>\n Shelling out a few million dollars on lawyers\u2014on top of spending a fraction of that on lobbyists to change Congress\u2019s minds\u2014is a tactic familiar to old-school legalization advocates. This has all been done before, with varying levels of success that, in binary terms, all failed.<\/p>\n Various parties including\u00a0federal prisoners<\/a>, cannabis researchers,\u00a0an ex-NFL player-turned-businessman<\/a>\u00a0and legalization advocacy groups have all tried to sue the federal government before\u2014to reschedule cannabis, to deschedule cannabis. All have failed, and all but one failed to even reach the august bench of the Supreme Court.\u00a0<\/p>\n That one, Gonzalez vs. Raich, held that Congress\u2019s powers under the\u00a0Commerce Clause<\/a>\u2014the federal government\u2019s Constitutional ability to regulate trade between the states\u2014\u201cincludes<\/a>\u00a0the power to prohibit the local cultivation and use of marijuana in compliance with\u201d state law.\u00a0<\/p>\n That was the \u201cbest set of facts to overturn the Controlled Substances Act you could hope for,\u201d\u00a0observed<\/a>\u00a0Sam Kamin, a professor of law at the Denver University Sturm College of Law and a cannabis law expert. \u201cAnd they didn\u2019t do it.\u201d<\/p>\n It stands to reason that the federal government isn\u2019t really wielding this power at the moment, at least not insofar as it did with litigant Angel Raich, a severely ill cannabis patient in California whose backyard garden was raided by DEA agents. But what Kurtin and other cannabis executives want is relief from the pressures that do exist\u2014on the banks and the taxman.\u00a0<\/p>\n If cannabis were descheduled, banking and taxation reform would be handled without need for Congress to legalize tax deductions and banking services. (Both the SAFE Banking Act<\/a> as well as more ambitious federal legalization appear hopelessly stalled in the Senate, where 60 votes are required to even get a vote on the topic.) And companies could start shuttling cannabis in between states (although some companies don\u2019t want that, at least not right away).<\/p>\n For MSOs such as Ascend Wellness, the \u201cbest possible outcome\u201d will be a ruling that removes the federal government from cannabis entirely and leaves everything up to the states, Kamin said. The problem is that a ruling like that would also remove the federal government from any national standards around minority participation or other questions of equity\u2014which means the legalization-minded social-justice advocates would hate it.<\/p>\n But again, overturning the CSA at the courts may not be the lone goal. \u201cI think it\u2019s part of a consistent and decades-long approach to critiquing and criticizing the CSA as not based in science, not based in the Constitution, and inconsistent with the will of the vast majority of the states and voters,\u201d Kamin said.\u00a0<\/p>\n So, would the courts simply leave everything up to the states, or would the courts deschedule cannabis and hand the industry over to pharmaceutical companies with the resources to get Schedule II substances through the onerous Food and Drug Administration (FDA) approval process? All are possible. \u201cEverything is on the table right now,\u201d Kamin said.<\/p>\n That includes striking down other federal powers to enforce other laws. In this, there\u2019s a strange and dangerous irony.<\/p>\n In another life, a decade ago, the bugaboo of self-avowed libertarians, Ascend Wellness\u2019s Kurtin, was the\u00a0Affordable Care Act<\/a>. While the Obama Administration\u2019s Justice Department used the logic in the Raich decision to defend Obamacare from conservative challenges, Raich herself signed onto amicus briefs seeking to overturn the federal healthcare mandate. Arguments limiting the federal government\u2019s power are more likely to be welcomed by conservative judges.\u00a0<\/p>\n And so, if the Raich precedent is put into the dustbin of history, so could other federal powers.<\/p>\n \u201cThey\u2019ve got to figure out a way to bring down federal marijuana prohibition and regulation without bringing down the whole universe of federal health and safety laws,\u201d said OSU\u2019s Berman. No pressure.<\/p>\n So, will the Supreme Court legalize cannabis? As always, time will tell.<\/p>\n The post Will the Supreme Court Legalize Cannabis?<\/a> appeared first on Cannabis Now<\/a>.<\/p>\n
A great dark cloud hangs over the bright and sunny success of marijuana legalization in the US: federal law, which still declares cannabis an outlaw plant. This status quo causes great distress to American cannabis businesses and those still in federal prisons for marijuana offenses. Despite all the progress atContinue Reading<\/a><\/span><\/p>\n","protected":false},"author":9,"featured_media":0,"comment_status":"false","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[16254,6678,50,1074,16255,90,65,7565,4821],"tags":[],"_links":{"self":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/55293"}],"collection":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/users\/9"}],"replies":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/comments?post=55293"}],"version-history":[{"count":1,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/55293\/revisions"}],"predecessor-version":[{"id":55294,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/55293\/revisions\/55294"}],"wp:attachment":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/media?parent=55293"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/categories?post=55293"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/tags?post=55293"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Bring on the Lobbyists<\/strong><\/h4>\n
Obamacare Beware<\/strong><\/h4>\n
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