This Beautiful Legal Argument Could Resolve Federal/State Marijuana Conflict…But Lawyers Made The Argument In The Wrong Court!

Check out Marvin Washington, et al., Petitioners v. William P. Barr, Attorney General, et al.’s recent July 2nd brief here on the US Supreme Court Website. This is a tremendously beautiful argument. If somebody actually wants to get a ruling on it, they need to start by filing it first in district court. This legal argument deserves a ruling, and I look forward to reporting on it when we get one, but I don’t expect one to come out of this case. (I’ll summarize the argument below and quote relevant portions from the) 54-page brief so you don’t have to read it all.)

The Weed Blog has correctly called this filing an “appeal with national implications.”

The argument should have been made prior to appeal unfortunately, and will not get heard here as a result. You cannot raise an issue in the appellate court that you did not first raise in a lower court. This argument is the correct argument, but the lawyers messed up by not first making it in district court. If somebody is going to make an argument like this they should make it in the district court, preserve it for the appellate court, and then the argument would be properly before the US Supreme Court. Rules for appellate procedure don’t allow good arguments to be made out of the blue.

Keep an eye on this argument. If we want to see it ruled on, it will pop up in a district court case here somewhere in the country soon.

The following was retrieved from https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-148.html on August 21 at 4:57 pm.

 

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari to review the judgmentof the United States Court of Appeals for the Second Circuit.

OPINIONS BELOW

The opinions below (App.1a-31a) are published at 925 F.3d 109 (2d Cir. 2019). The District Court’s opinion (App.32a-58a) is published at 17 Civ. 5625 (AKH), 2018 WL 1114758 (S.D.N.Y. Feb. 26, 2018).

JURISDICTION

The Second Circuit entered judgment on February 3, 2020.

This Court’s 60-day extension moved the deadline for this petition to July 2, 2020.

So, that background of this case sets the stage for the arguments I’ve highlighted below. There’s a bit more background, but I’ll skip that here. From page 6:

 

Page 6: As shown below, the irreconcilable Internal Federal and Federal-State Conflicts have created an incomprehensible hodgepodge of laws, rules and regulations that leaves cannabis patients, their physicians, cannabis businesses (“Cannabis Businesses”) and those businesses that support them (e.g., law and accounting firms, payroll companies, security firms) utterly confused as to what is legal and what is not—a situation that Attorney General Barr described in 2019 congressional testimony as “intolerable.”6 The consequences of the lower courts’ errors, and the confusion associated with the various conflicts under federal and state law are profound, given what is at stake for Petitioners and those similarly situated.

 

Footnote 6Claire Hansen, Attorney General Barr Calls Current Marijuana Situation ‘Intolerable,’ Indicates Support for Reform Bill, U.S. NEWS &WORLD REPORT(Apr. 10, 2019).

The argument that was not as I understand it initially made when this case was first filed is made here on page 30:

II.THE IRRATIONAL CLASSIFICATION OF CANNABIS IS UNCONSTITUTIONAL AND HAS CREATED A CHAOTIC SITUATION IN WHICH AMERICANS CANNOT RATIONALLY DISCERN WHAT IS AND IS NOT LEGAL

The CSA requires, and this Court has confirmed, that the Schedule I Requirements for each substance classified under Schedule I apply equally to classifications by both Congress and the Attorney General.40 Thus, for Congress to classify cannabis under Schedule I, all three Schedule I Requirements must be met. 21 U.S.C. §812. As shown supra, those Schedule I Requirements include that cannabis be found, inter alia, to have no safe medical application in the U.S., even under medical supervision (21 U.S.C. 30§812(b)(1)(B)-(C)). Yet, as is plain from the record, Congress and the federal government have recognized that cannabis does have medical applications and can be safely administered, with or without medical supervision.

In particular, as shown supra, the federal government fully authorized the establishment of 38 State-Legal (Medical) Cannabis Jurisdictions across America;protected State-legal Cannabis Businesses, cannabis treatment providers and their patients from enforcement under the CSA, including through enactment of the Funding Riders;procured Federal Cannabis Patents based upon attestations that cannabis is safe and medically effective;distributed cannabis to patients throughout the U.S. under the auspices of the IND Program;and approved a cannabis drug (Epidiolex) for the treatment of children without a prescription. Clearly, there is an irreconcilable conflict between the classification of cannabis under the CSA and Federal Acceptance—legislative and administrative actions that confirm without qualification that, in direct contradistinction to the Schedule I Requirements, the federal government recognizes that cannabis has current applications in the U.S. and can be administered safely.41

While the right to due process “may not require that Congress’s actions reflect ‘mathematical exactitude’ in fitting means to ends, [] the connection between means and ends must be grounded on something more than an unreasonable, hypothetical connection that the United States has expressly disclaimed in related proceedings.”42 Here, the classification of cannabis is based upon “findings” that are directly and fully controverted by overwhelming evidence of the federal government’s recognition that cannabis is safe and medically effective.

II.THE LOWER COURTS ERRED IN RULING THAT CONSTITUTIONALCLAIMS CAN BE ADDRESSED IN THE CONTEXT OF ADMINISTRATIVEREVIEW,AND IN SO DOING,CREATED ANOTHER CIRCUIT SPLIT

In affirming dismissal of this action, the Second Circuit held, inter alia, that“[i]t cannot be seriously argued that [de-scheduling] is not available through the administrative process” (App.16a). The Second Circuit’s dismissal was erroneous for three reasons.

First, as set forth supra, the DEA has concluded that it cannot de-schedule cannabis, but is limited to merely reclassifying it under Schedule II. Denial of Petition to Initiate Proceedings to Reschedule Marijuana, CFR Chapter II and Part 1301, Fed. Register, Vol. 156, 53688, Aug. 12, 2016 (quoting N.O.R.M.L.559 F.2d at 751). The D.C. Circuit in N.O.R.M.L. has similarly concluded that, “in accordance with [the CSA], DEA must place marijuana in either schedule I or schedule II.” N.O.R.M.L., 559 F.2d at 751 (emphasis added). In view of the rulings by the DEA and D.C. Circuit, filing a petition with the DEA for de-scheduling cannabis would have been a futile endeavor.

Second, the DEA lacks the “institutional competence” to make determinations about the constitutionality of the classification of cannabis.43 Thus, again, petitioning the DEA for that relief would have been futile.44

It is well established that aggrieved parties cannot be required to submit to an administrative review process by an agency that lacks the power to grant the relief requested.45Thus, the Second Circuit committed clear error in dismissing this action in favor of requiring Petitioners to proceed with an administrative review process under the CSA that could not, under any circumstances, have resulted in the relief they seek.46

Lastly, Petitioners never even requested an administrative remedy, and copiously avoided doing so in their Amended Complaint(App.257a ¶370, see also257a-278a). Petitioners have, since inception of this action, sought the only remedy legally available to them—a declaration that the classification of cannabis is unconstitutional and an injunction against enforcement of the CSA as it pertains to cannabis.

The Second Circuit herein concluded that Petitioners were required to exhaust administrative remedies under the CSA by filing a petition with the DEA before resorting to litigation(App.16a);however, the D.C. Circuit has ruled that the DEA (which cannot declare laws unconstitutional) cannot de-schedule cannabis, but rather can only re-classify it under Schedule II, creating a clear conflict with the Second Circuit on this issue, and leaving Petitioners without a viable remedy.

Never before has it been argued in any court that I am aware of that the administrative process under the CSA is an inadequate administrative remedy. This argument deserves a ruling. If anyone would like to see this argument actually ruled on, it will not happen in this case, as SCOTUS will not touch that argument if it wasn’t made in a lower court and preserved for appeal first. So, if you’d like the above argument ruled on in court, you can file it yourself. There’s nothing stopping anybody from filing their own cases.

This beautiful argument is the best answer I’ve seen to how to fix the impossibly outdated and hard to navigate drug laws. I look forward to it being filed in court sometime in the near future, and will report on it here at WeedPress when it eventually comes to fruition.