Many cannabis industry observers have pinned their hopes for federal marijuana legalization on an act of Congress or even an executive order from the president.
But there’s another option: legal challenges through the U.S. court system.
Although no lawsuit has yet succeeded in forcing the U.S. Drug Enforcement Administration to move cannabis from Schedule 1 on the list of controlled substances, that doesn’t mean it won’t happen, according to attorneys who have attempted to advance marijuana reform through the judiciary.
“It could totally be done in the courts,” said Texas-based attorney Matthew Zorn, who tried to force the DEA to hold a hearing on rescheduling marijuana but lost on a technicality.
Zorn was representing cannabis researcher Dr. Sue Sisley, who has been trying for years to launch clinical trials to study the medical effects of marijuana on patients.
The case—originally filed in 2020 as a petition with the Ninth Circuit Court of Appeals—was met with defeat in 2021, when the court ruled the plaintiffs failed to “exhaust administrative remedies,” Zorn said. In other words, the court said Sisley should have begun by petitioning the DEA directly to request that marijuana be rescheduled.
“Nobody has ever managed to put together all the pieces at once, which is: having legal standing, exhausting administrative remedies and then making the right argument,” Zorn said, noting there have been a number of legal cases that tried to overturn the federal government’s marijuana prohibition.
Washington v. Barr, a multiyear lawsuit that began in summer 2017, sought to fully legalize marijuana by having the courts proclaim its Schedule 1 status unconstitutional.
That case failed when the U.S. Supreme Court declined to take it up in 2020, after the plaintiffs had lost in the lower federal courts. Judges cited the same technicality: The plaintiffs did not first ask the DEA to change its mind.
“We took a look at the history of efforts to reschedule cannabis, and each of those efforts took seven to nine years,” said New York City attorney Lauren Rudick, one of a team of lawyers at Hiller PC who spent years on the Washington case.
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Rudick said her team went straight to the courts because their plaintiffs were medical cannabis patients who didn’t have the time and money to wait for the DEA to say no before filing a lawsuit.
But that doesn’t mean the same tactic couldn’t be successful, Rudick said.
“For every Loving v. Virginia—the case that legalized interracial marriage—or Brown v. Board of Education—which desegregated schools—there were scores of cases that came before them. It was a buildup,” Rudick said, arguing that the cultural stigma attached to marijuana has been one of the main hurdles faced by cannabis lawyers.
Recipe for success
The issue, both attorneys said, is a combination of finding the right plaintiffs and the right team of lawyers, all of whom are dedicated enough to spend a decade or more working for court victories.
“Resources are huge. We took on the Washington case pro bono. It was millions of dollars in legal fees,” Rudick said.
“This is a monopolizing effort for a firm. It could easily put a small firm out of business, this type of litigation. Especially when you have the weight of the (U.S. Department of Justice) against you, and they have all the resources in the world.”
Notably, legal outcomes of these two cases could have had drastically different impacts for existing marijuana businesses.
If Sisley and Zorn had won their case, for instance, and the DEA moved cannabis to Schedule 2, that could have opened the door for pharmaceutical giants to get into the cannabis industry and created immense disruption with new federal regulations. (See “Pros and cons of moving cannabis from Schedule 1 on the list of controlled substances.”)
That was something that Rudick said her team wanted to avoid. And it was also one of the reasons her team decided against starting with a rescheduling petition to the DEA before moving to a lawsuit.
“Something that’s worse than what we have right now—which is sort of a hands-off policy—is Schedule 2, which would basically put all of our existing industry out of business. We can’t have a pharmaceutical model,” Rudick said. “And that was one of the fears we had with a rescheduling petition.”
Both attorneys said a court victory—and either rescheduling or descheduling, depending on the plaintiff’s request—is there for the taking.
Rudick said federal marijuana prohibition violates “so many fundamental constitutional rights” that it would be almost child’s play for an attorney to win on the merits of a legal argument in open court.
“It’s rooted in unconstitutionality,” Rudick said of marijuana’s Schedule 1 classification—which, according to the DEA, means that cannabis has “no currently accepted medical use and a high potential for abuse.”
That very definition—and how it’s understood by DEA officials—is why Zorn says the agency’s standards for Schedule 1 classification are absurd.
“Our core contention in that case, and something that wasn’t decided (by the judge) … was that the DEA has misinterpreted the phrase, ‘No currently accepted medical use,’ to mean ‘approved by the (U.S. Food and Drug Administration),’” Zorn said. “And because of that, (the DEA) refuses to reschedule marijuana.”
Which means that the policy debate is ripe for the right attorney, Zorn said.
“File a petition, make all the same arguments we made, and when the DEA rejects it, go file an appeal. Go to whichever circuit court, take our brief and copy and paste it,” Zorn said.
“If you don’t lose on a technicality, you will win.”