The U.S. Department of Homeland Security (DHS) and Customs and Border Protection (CBP) are urging a federal court to dismiss a lawsuit from licensed New Mexico marijuana businesses who claim the agencies have been unconstitutionally seizing state-regulated marijuana products and detaining industry workers at interior checkpoints.
The federal agencies’ core argument is that, as long as marijuana remains federally prohibited, border agents are within their statutory right to disregard state law and seize the property—and that the limited protections that states with marijuana program enjoy under a congressional rider and general Justice Department discretionary policies don’t apply to CBP, which falls under DHS.
Representatives of eight New Mexico marijuana businesses jointly filed the lawsuit against the federal government last October in the U.S. District Court for the District of New Mexico. That action came months after initial reports emerged of CBP agents increasingly taking cannabis products and other assets from state licensees at border checkpoints throughout the state.
The plaintiffs are arguing that the CBP actions, without due process, violate protections against unlawful searches and seizures guaranteed under the Fifth Amendment. But CBP is contesting the challenge and moving for dismissal over a “failure to state a claim upon which relief can be granted,” as well as a “lack of subject matter jurisdiction.”
“Their primary contention is that, since marijuana has been legalized as a matter of state law in New Mexico, summarily seizing it deprives them of their state-created property rights in marijuana without due process of law,” the filing, first reported by Law360, says. “But marijuana is currently a Schedule I controlled substance under federal law.”
“The federal drug laws expressly extinguish property rights in Schedule I controlled substances, and they further provide that such substances are contraband subject to summary forfeiture,” the agencies said. “It is axiomatic that, to the extent federal law conflicts with state law, federal law prevails.”
CBP also made a series of more nuanced challenges to certain allegations, including their complaint about the seizure of non-cannabis assets such as cash and vehicles they used to transport the marijuana. The agency said the vehicle issue was moot because they were “returned to Plaintiffs before this action was filed, so Plaintiffs lack standing to seek relief stemming from the seizures of those vehicles.”
The agencies further addressed the cannabis businesses’ arguments about how their actions seemingly conflict with certain federal laws and discretionary precedent. They note, for example, that a longstanding congressional appropriations rider protecting medical cannabis states from federal intervention is only applicable to the Department of Justice, not DHS or its component agencies like CBP.
Beyond that, the government contested plaintiffs’ argument that the federal government’s “hands-off” approach to state-level marijuana reform was relevant to the case at hand. The agencies simply said that, regardless of past DOJ and Treasury Department guidance or informal policy precedent, there’s nothing currently codified in law that bars DHS and CBP from continuing to enforce federal prohibition.
“Agents who encounter subjects in possession of marijuana in violation of federal law, based on a test identifying the substance as marijuana and not hemp, maintain appropriate enforcement authority,” the government said. “Here, even though New Mexico law may create a property interest in Plaintiffs’ marijuana cognizable under state law, marijuana remains contraband under federal law.”
Given that lack of “cognizable property interest in their marijuana” under federal statute, the businesses “were entitled to no additional process in connection with its seizure and forfeiture.”
DHS and CBP stressed throughout the filing that marijuana remains a Schedule I drug under the Controlled Substances Act (CSA). And while the agencies acknowledged that the Drug Enforcement Administration (DEA) is currently “considering rescheduling marijuana under the CSA,” it remains the case that “no reclassification has occurred to date.” And to that point, the rescheduling process was recently delayed after a DEA judge granted an appeal in the administrative hearing process.
In the original lawsuit, the cannabis businesses also detailed multiple CBP encounters where employees were detained, at time for hours on end, without being charged with any specific crimes. The agency didn’t address the nature of the detainments, and it simply maintained its legal authority to hold the workers.
The plaintiffs also asked the court to compel CBP to provide documents on property the agency seized, return the property (or compensation equal to the value of the products) to plaintiffs and also set out a process to challenge “any future seizures in accordance with the Due Process Clause of the Fifth Amendment of the United States Constitution.”
The controversy also caught the attention of certain congressional lawmakers. For example, Rep. Gabe Vasquez (D-NM) sought to amend appropriations legislation covering DHS by explicitly preventing U.S. border patrol agents from using funds to seize marijuana from state-licensed businesses.
Last April, New Mexico Gov. Michelle Lujan Grisham (D) could be heard saying on a leaked recording that she was “offended” when the secretary of the DHS reacted to her concern about the recent surge in CBP seizures of marijuana from legal operators in her state by saying, “Who cares? They make a lot of money.”
The governor also said on the call that CBP officials are trying to justify the interdictions of marijuana from state-legal businesses at interior checkpoints, primarily around the Las Cruces area, as a necessary consequence of seizing illicit fentanyl. However, as industry stakeholders have pointed out, the spike in cannabis seizures seems to be largely isolated to New Mexico, even though other states like Arizona and California also have legal cannabis operators near the Mexico border.
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Beginning last year, the agency seemed to take a more proactive approach to enforcing federal prohibition, taking hundreds of pounds of cannabis at the checkpoints inside the state. CBP is able to carry out its activities within 100 miles of the U.S. border.
“Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law, given the classification of marijuana as a Schedule I controlled substance,” a CBP spokesperson told Marijuana Moment last year. ”Consequently, individuals violating the Controlled Substances Act encountered while crossing the border, arriving at a U.S. port of entry, or at a Border Patrol checkpoint may be deemed inadmissible and/or subject to, seizure, fines, and/or arrest.”
CBP “wants to remind the public that while traveling through any U.S. Border Patrol checkpoint, to include New Mexico, being in possession of marijuana is illegal under federal law,” they said.
CBP’s actions against state-legal marijuana business has also received pushback from other members in Congress as well.
“The Biden-Harris Administration is not doing enough to protect states who are not waiting for the federal government to catch up,” Rep. Earl Blumenauer (D-OR), the now-retired founding co-chair of the Congressional Cannabis Caucus, told Marijuana Moment last April.
“These seizures underscore the confusion and harm caused by the growing gap between the federal government and state-legal operations,” the congressman said. “Absent descheduling, President Biden urgently needs to issue guidance to prevent this type of infringement from happening again.”
Read DHS and CBP’s filing in the New Mexico marijuana seizures case below:
CBP New Mexico Marijuana by KyleJaeger on Scribd
The U.S. Department of Homeland Security (DHS) and Customs and Border Protection (CBP) are urging a federal court to dismiss a lawsuit from licensed New Mexico marijuana businesses who claim the agencies have been unconstitutionally seizing state-regulated marijuana products and detaining industry workers at interior checkpoints. The federal agencies’ core argument is that, as long Read More
