A federal lawsuit brought by several marijuana companies hoping to overturn cannabis prohibition through the courts is back in play.
Green Market Report reported that the original lawsuit was filed in October last year by Chicago-based multistate operator Verano Holdings Corp. (OTC: VRNOF), along with Massachusetts-based Canna Provisions, Wiseacre Farm, and entrepreneur Gyasi Sellers using the well-known legal firm of Boies Schiller Flexner LLP. It was dismissed on July 1, 2024. But the legal team at the time said that was always part of the long-term plan.
The dismissal claimed that the plaintiffs in the case had not yet proven that there exists a “fundamental right” under the U.S. Constitution to cultivate cannabis, but rather that such a right is a question still under the purview of Congress. It also found that the growth of the national marijuana market, and the opt-in of dozens of states to legal cannabis, does not reach the level of a constitutional right.
At the time Schiller said, “We’re now onto the appellate stage of this litigation, which is what we always expected, one way or another,” noting that even if the cannabis companies had won, the DOJ would have certainly appealed.
On to the First Circuit
This week, the legal team filed that brief with the First Circuit appellate court. The brief stated, “This appeal presents multiple constitutional questions, including the proper standard for assessing Congress’s authority to regulate local commerce under the Commerce Clause and Necessary and Proper Clause. The issues at stake in this appeal include matters of importance both in the Commonwealth of Massachusetts and nationwide.”
The brief acknowledged the dismissal saying that the district court held that modern legalization trends were irrelevant under Dobbs. Still, Dobbs instructs courts to ignore modern practices when they are inconsistent with historical analysis. They noted in the brief that marijuana is a flowering plant that has been cultivated, distributed, sold, and used in the United States since at least 1619. Each of the Thirteen Colonies enacted legislation to protect or promote commerce in marijuana (then known as hemp).
Supreme Court next
In July, the legal team said that after this step with the First Circuit, it expected to petition the U.S. Supreme Court to be heard. Though it’s still uncertain whether the Supreme Court will even agree to take the case, Schiller said he thought three of the court’s conservatives were leaning towards wanting to weigh in. If that happens, “there could be a decision next summer. The latest I would think would be the following summer,” Schiller said.
Schiller also said a separate recent Supreme Court ruling, which overturned the longstanding Chevron precedent, might mean that the Biden administration’s attempt to reclassify marijuana as a Schedule III substance may also now be in peril.
“Along with Chevron, I think rescheduling is gone,” Schiller said.
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