Judge skeptical of challenge to federal marijuana prohibition

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The effort by four cannabis businesses, including one multistate operator, to undo federal marijuana prohibition via a constitutional challenge was met with skepticism by a federal judge in Massachusetts on Wednesday.

The cannabis companies, led by Chicago-based MSO Verano Holdings, last year hired superlawyer David Boies to revisit an argument – dismissed in 2005 by the U.S. Supreme Court – that the federal Controlled Substances Act unconstitutionally harms their businesses.

Marijuana legality case meant for Supreme Court

The lawsuit once again is meant to reach the Supreme Court, where the plaintiffs hope the justices will issue a different ruling than the one reached 19 years ago, before the current patchwork of state-regulated marijuana markets.

According to news agency Reuters, Boies acknowledged in U.S. District Court in Springfield, Massachusetts, on Wednesday that asking a lower court judge to issue a ruling that contradicts the Supreme Court is a “big step.”

However, Boies added, U.S. District Judge Mark Mastroianni could simply find that the 2005 decision in Gonzalez v. Raich no longer applies because of how drastically the facts have changed.

“I think there can be no doubt that the predicates of that decision no longer exist,” Boies argued, according to Reuters.

Mastroianni reacted coolly to Boies’ suggestion that a lower court justice could undo a Supreme Court ruling.

“Even if I’m accepting that everything you’re saying is true, it’s for the Supreme Court to change,” the judge said, according to Reuters.

It’s unclear when Mastroianni might issue a ruling, which could then be appealed, the next step on the way to any case the Supreme Court might choose to hear.

It’s also unclear whether cannabis companies would pursue that route even after if the Biden administration’s effort to reschedule marijuana as less dangerous under federal law – thus unlocking tax relief – is finalized.

Verano did not respond to a request for comment from MJBizDaily.

Cannabis companies behind court cases

In addition to Verano, plaintiffs in the case include Massachusetts-based retailer Canna Provisions, Treevit delivery service CEO Gyasi Sellers and marijuana cultivator Wiseacre Farm.

In 2005, only a few states had legal medical marijuana programs, and even personal grows risked raids from federal law enforcement.

Now, nearly half the country has access to regulated adult-use marijuana, and publicly traded cannabis companies operate without interference from federal law enforcement.

And in a separate 2021 decision brought by a Colorado company challenging the IRS’ prohibition on cannabis business deductions, conservative U.S. Supreme Court Justice Clarence Thomas wrote that federal marijuana law might no longer be “necessary or proper” given state legalization laws.

In an opinion on Standing Akimbo v. the United States, Thomas said the status quo “strains basic principles of federalism.”

Notably, the current high court is dominated by former members of The Federalist Society, a libertarian advocacy group.

Boies pointed to Thomas’ 2021 statement in the Standing Akimbo case on Wednesday while arguing before Mastroianni.