Marijuana operators vow to take federal prohibition challenge to Supreme Court

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The cannabis multistate operator behind a constitutional challenge to federal marijuana prohibition that was dismissed by a lower federal court is vowing to take the issue to the U.S. Supreme Court.

That’s the only venue that can overturn a 2005 Supreme Court decision upholding federal bans on the drug, U.S. District Court Judge Mark Mastroianni ruled Monday in dismissing the case, according to Reuters.

Darren Weiss, president of Verano Holdings Corp., one of the plaintiffs in the case, called the decision a “great result.”

“We’re taking this all the way to the Supreme Court!” he wrote in a post on X, the platform formerly known as Twitter.

Path to the Supreme Court

Last fall, Chicago-headquartered Verano and three Massachusetts-based plaintiffs sued U.S. Attorney General Merrick Garland in a bid to overturn the Supreme Court’s 2005 ruling upholding federal marijuana prohibition.

To fight the challenge, the four companies hired the New York firm of prominent litigator David Boies, who successfully defeated a ban on gay marriage, among other prominent cases.

The Supreme Court rule in 2005 in Gonzalez v. Raich that Congress has the authority to ban interstate trade in marijuana despite state laws allowing cannabis cultivation and sale.

At the heart of the plaintiffs’ new argument is that, since the Gonzalez v. Raich ruling, nearly half of U.S. states have legalized adult-use cannabis.

And federal authorities have allowed a multibillion-dollar cannabis industry with publicly traded companies to grow without any significant enforcement.

But overruling Supreme Court precedent is “beyond the authority” of a lower court “to grant,” Mastroianni wrote in his Monday ruling.

Marijuana sector has no ‘fundamental right’

Mastroianni also found “no precedent” for the plaintiffs’ argument that federal marijuana law bans their rights to due process.

The U.S. Constitution provides no “fundamental right to cultivate, process, and distribute marijuana,” he wrote.

Josh Schiller, Boies’ co-partner in Boies Schiller, told Reuters that the dismissal was expected and an appeal will be filed.

Hanging over the proceedings is the Supreme Court’s recent ruling that regulatory agencies no longer have authority to settle questions that laws leave unanswered.

Rescheduling debate

In a separate interview, Schiller told Green Market Report that he believes the high court’s ruling to overturn the so-called Chevron doctrine jeopardizes the marijuana rescheduling process launched in 2022 by the Biden administration.

Whether via the formal rulemaking procedure or through a major court decision, moving marijuana from Schedule 1 to Schedule 3 could unlock significant benefits for marijuana companies, such as providing tax relief or opening legal interstate commerce.

Meanwhile, attorney Shane Pennington, a partner at Washington, D.C.-based Porter Wright, told MJBizDaily that rescheduling likely would survive any Chevron-based challenges.

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