by: Melissa A. Murphy-Petros, Ian A. Stewart, Neil M. Willner
The National Cannabis Industry Association (NCIA), the largest cannabis trade association in the United States, and The Arcview Group (Arcview), the cannabis industry’s oldest and largest investor network, stepped forth as amici before the U.S. Supreme Court in the case of Marvin Washington, et al., Petitioners v. William P. Barr, Attorney General, et al., which seeks to invalidate marijuana’s Schedule I status under the Controlled Substances Act (CSA) on constitutional grounds. Both organizations have a significant interest in 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.
Wilson Elser’s Cannabis Law and Appellate Practice teams drafted their Amicus brief for a writ of certiorari in challenge to marijuana’s Schedule I status.
The Petitioners include two children with serious seizure disorders who require lifesaving medical cannabis, an Iraq war veteran who treats his severe PTSD with medical cannabis, and a former NFL football player who is now an entrepreneur in the medical cannabis space. In their complaint, filed in the Southern District of New York, the Petitioners asked the trial court to strike down marijuana’s Schedule I status on the basis that it violates their rights under the Due Process Clause of the Fifth Amendment of the United States Constitution. Both the trial court and the Second Circuit Court of Appeals held that the Petitioners were required to exhaust administrative remedies with the Drug Enforcement Administration (DEA) before they could seek a legal remedy with the court. The Petitioners then appealed to the United States Supreme Court.
The NCIA and Arcview join the Petitioners’ argument that the lower courts erred in requiring exhaustion of administrative remedies, which would result in the Petitioners facing substantial prejudice because the DEA maintains an irrational and archaic position on the scheduling of cannabis that is out of step with sweeping medical, scientific, legal and social advances. The Amicus brief argues that the DEA is not only unwilling but also incapable of providing the remedy sought by the Petitioners, making exhaustion futile and inappropriate. As recently as 2016, the DEA reiterated its long-standing but flawed position that it cannot legally classify cannabis anywhere but Schedule I of the CSA, or potentially Schedule II, due to international treaty obligations. Reclassification of cannabis to Schedule II, however, does not represent a viable remedy for the Petitioners.
The DEA has had multiple opportunities since the early 1970s to determine the proper classification for cannabis under the CSA, including whether it should have any classification under the statute. The evidence nevertheless leads to the inescapable conclusion that the agency has for decades consistently devalued or ignored advances in cannabinoid science. Indeed, the Second Circuit acknowledged in its decision under appeal that based on our current state of knowledge, “it is possible that the current law, though rational once, is now heading toward irrationality; it may even conceivably be that it has gotten there already.” This is precisely the point. The DEA cannot reasonably be expected to determine whether its own entrenched position has become so irrational that it now violates the Petitioners’ constitutional rights. That is an issue squarely within the domain of the courts, not a federal law enforcement agency.
In dismissing the Petitioners’ constitutional claim, the Second Circuit casually concluded that “it cannot be seriously argued” that reclassification or de-scheduling cannabis is not available through the administrative process. Yet Petitioners make precisely this argument. In our Amicus brief, we further ask the Supreme Court to consider whether it is reasonable to believe that filing yet another petition with the DEA would cause the agency to reverse an entrenched legal position that has become irrational over time, and particularly when the agency has vigorously defended that position since as long ago as 1972 and as recently as 2016.
The Amicus brief further points out that no other industry in the history of this country has been able to survive and grow to this extent in the face of such a legal quagmire. The DEA’s self-asserted sole administrative remedy of reclassification to Schedule II, however, could result in the destruction of all state cannabis programs and a further resurgence of the unregulated illicit marijuana market. The creation of a prescription drug model could have devastating financial implications on the nascent cannabis industry and could be far worse than the troublesome status quo under Schedule I.
Based on the above, we argue that the Second Circuit’s decision to require exhaustion of administrative remedies with the DEA is based on a gross over-simplification that fails to account for an entrenched and irrational agency mindset, and is simply wrong on the legal merits. Pursuant to long-standing Supreme Court precedent, a reasonable balancing of the individual and institutional interests is required here and should lead only to the reasonable conclusion that exhaustion is not necessary and that the matter should be allowed to proceed in the district court.
Reprinted with the permission of Wilson Elser
Read the Brief.
Ian is a partner in the Los Angeles office of Wilson Elser. He is co-founder and chair of the Wilson Elser Cannabis Law practice and uses his 20 years of legal experience to help clients navigate the legalities around cannabis and hemp. Ian works with licensed cannabis operators to comply with their obligations under the law and to develop risk management best practices. He also regularly consults with insurance companies to assist with cannabis-related underwriting practices and the development of new policy forms.
He is currently Chair of the National Cannabis Industry Association’s Finance and Insurance Committee, as well as Vice-Chair of the California Cannabis Industry Association’s Insurance Committee. Ian received his B.A. from Washington University in St. Louis, and his JD from St. Louis University. He has been with Wilson Elser for the past 18 years.
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