New lawsuit puts in question the rationale behind marijuana prohibition

If you’re a regular reader of my articles, you know I’ve long held that the federal government’s blanket prohibition on drugs like marijuana is an irrational, unethical, and unconstitutional violation of individual liberty. The harsh criminalization of a plant that has been used by humans for thousands of years is the height of authoritarian overreach, driven more by reefer madness propaganda than any legitimate public policy rationale.

Well, it turns out I’m not alone in viewing the federal drug war as a catastrophic failure and affront to common sense. A group of cannabis companies has filed a major lawsuit challenging the very legal foundations of marijuana’s prohibition under the Controlled Substances Act. Their argument? That the federal ban no longer has any rational basis when dozens of states have implemented regulated programs that have replaced the illicit market the original law aimed to eliminate.

This lawsuit represents a potentially groundbreaking direct assault on the crumbling facade of marijuana prohibition. In this article, we’ll dive deep into the core arguments advanced by the plaintiffs, evaluate the legal prospects of their case, and discuss whether it could finally force the government’s hand. We’ll also explore actions individuals can take to further apply pressure and make our voices heard on this crucially important issue.

Regardless of the outcome, this bold litigation demonstrates that the tides have turned irrevocably against the draconian policies of the failed war on drugs. The march toward legalization may have started as a revolution, but it is increasingly becoming a inexorable reckoning that even the federal government cannot defy forever.

The lawsuit in question was filed by a group of marijuana companies including multi-state operator Verano Holdings Corp., Massachusetts-based Canna Provisions, Wiseacre Farm, and Treevit CEO Gyasi Sellers. They are represented by the prominent law firms Boies Schiller Flexner LLP and Lesser, Newman, Aleo and Nasser LLP. The lawsuit alleges that the federal government’s ongoing cannabis prohibition under the Controlled Substances Act (CSA) is unconstitutional and irrational given the widespread state-level legalization and regulation that has occurred. As the filing states:

“Dozens of states have implemented programs to legalize and regulate medical or adult use marijuana…And by providing consumers with safe, regulated, and local access to marijuana, those states have reduced illicit interstate commerce, as customers switch to purchasing state-regulated marijuana over illicit interstate marijuana.”

This new 32-page filing is a response to the federal government’s attempt to dismiss an underlying lawsuit first brought by the companies in October 2022. That original complaint argued that “the federal government has long ago abandoned the goal of eliminating marijuana from commerce” and that “even if Congress still wished to eliminate interstate transactions in marijuana in their entirety (it does not), it has no rational basis for banning state-regulated activities that reduce interstate traffic in marijuana.”

The crux of the case centers on overturning the 2005 Supreme Court decision in Gonzales v. Raich, which held that the federal ban on cannabis preempted state legalization laws due to Congress’s power to regulate interstate commerce. As the plaintiffs’ latest filing contends:

“In the two decades since Raich, all the legislative and operative facts on which Raich’s conclusion rested have changed. It is therefore necessary to assess Congress’s regulation of intrastate marijuana based on the new regulatory framework and new factual circumstances.”

By filing this lawsuit and seeking to overturn Raich, the cannabis companies aim to finally eliminate the threat of federal enforcement in legal state markets. If successful, it would open the door for state-licensed businesses to access financial services, claim tax deductions, and operate without the cloud of residual illegality that has hampered the industry.

While the odds of the Supreme Court revisiting its decision are difficult to gauge, the filing of lawsuits like this plays a vital role in applying public pressure and highlighting the dissonance between state and federal marijuana laws. Even if the case itself does not prevail, it shines a spotlight on the irrationality of the government’s current stance and forces lawmakers and enforcement agencies to contort themselves further to justify an untenable policy kurns out of step with public opinion and modern governance.

Prominent litigator David Boies, whose prior high-profile cases include the Department of Justice lawsuit against Microsoft and the overturning of California’s same-sex marriage ban, made the sweeping argument that:

“Americans believe that cannabis should be legal and available subject to reasonable regulation by the states…The federal government lacks authority to prohibit intrastate cannabis commerce. Outdated precedents from decades ago no longer apply—the Supreme Court has since made clear that the federal government lacks the authority to regulate purely intrastate commerce.”

By methodically deconstructing the legal underpinnings of prohibition, pushing for judicial remedies, and elevating the issue through the courts, this lawsuit contributes to further eroding the false narratives that enabled the cruel excess of the war on drugs. Initiatives like this are crucial steps towards finally ending failed marijuana criminalization once and for all.

SOURCE: GALLUP

Given that national polls consistently show a solid majority of Americans supporting legalizing marijuana, and the fact that 38 states have already implemented some form of legal cannabis program, one might reasonably ask: why is the federal government dragging its feet so much on this issue?

The unfortunate truth is that the sluggish pace is very much by design. The complex bureaucratic maze surrounding federal drug policies, centered on agencies like the Drug Enforcement Administration (DEA) and laws like the Controlled Substances Act (CSA), has been structured in a way that makes meaningful reform excruciatingly difficult and subject to endless delays.

The DEA has historically been able to take a decade or more just to reject rescheduling petitions, often without providing any substantive rationale beyond simply stating “it’s the law.” This byzantine process essentially allows the agency to run out the clock indefinitely on any cannabis policy changes it ideologically opposes.

But the bigger impediment to legalization is the very existence of the CSA itself and its unconstitutional centralization of power over drug manufacturing, distribution, research, and consumption. By arrogating control over Americans’ free choice as individuals under the flimsy pretext of interstate commerce regulation, the CSA represents a startlingly authoritarian federal overreach into what should be a matter of personal liberty.

Of course, the self-serving motives behind Congress’ reluctance to amend or abolish this draconian statutory regime are not exactly a mystery. With only 32% of the U.S. public expressing trust in Congress to act in the national interest, lawmakers have amply demonstrated whose interests they really serve – chiefly those of deep-pocketed special interests like the pharmaceutical industry.

Numerous studies have shown that after states legalize medical marijuana, drug companies see sharp declines in revenues and prescription numbers for lucrative pain medications as patients turn to cannabis as an alternative treatment. With legal marijuana inevitably disrupting Big Pharma’s profit streams, it’s no surprise these powerful corporate forces have aggressively lobbied Congress to maintain cannabis prohibition and protect their bottom line.

So while a majority of the American people have left the Reefer Madness propaganda behind, Congress continues to peddle laughably disingenuous narratives about marijuana’s dangers precisely because it remains so beholden to the powerful moneyed interests profiting from the drug war status quo.

Until the people demand full representation from their elected officials instead of fealty to corporate overlords, we are likely to see this same cynical political theater play out repeatedly. Even outright legalizing marijuana at the federal level may not dismantle the bureaucratic fortresses that have been cleverly constructed to impede American’s free access to cannabis as a matter of individual choice.

While lawsuits like this are invaluable for shining a light on the absurdity of continued federal cannabis prohibition, it’s unlikely the Supreme Court will revisit its precedent and overturn the Controlled Substances Act – at least not through this particular case. The inertia and institutional resistance to marijuana legalization remains powerful.

The Biden administration will no doubt continue to cite its modest cannabis pardons and drug rescheduling review as major reform “wins.” But such half-measures are mere political theater, failing to deliver on Biden’s campaign promises of full decriminalization and expungement of prior records.

Ultimately, the cruel overreach of the CSA cannot be undone through bureaucratic nibbling around the edges. To reclaim our inalienable rights to bodily autonomy and cognitive liberty, we must reject the unconstitutional foundations of this oppressive statute entirely at every level of society and governance.

Where the federal government continues to fail, it falls to the people themselves to enact the drug policy change we deserve through local and state reforms. Most Americans still place high trust in their municipal and state governments over Washington D.C. It is here, in our own backyards, that we can make real progress.

While the latest lawsuit highlights the building momentum to end the irrational war on cannabis, true liberation will only come from a flourishing of grassroots activism. Making that dream a reality will require each of us to do our part by demanding more from our communities and our representatives. The American people are ready to legalize freedom – the question is whether our institutions can evolve quickly enough to get out of the way.

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• Source: http://cannabis.net/blog/opinion/new-lawsuit-filed-against-the-us-government-says-cannabis-prohibition-is-now-illegal-based-on-s