Federal Prohibition on Marijuana Not Based on Rational Policy, According to Texas Medical Marijuana Patient

As more and more U.S. states enact measures allowing marijuana possession and use for medical or even recreational purposes, federal laws regulating marijuana look increasingly out of step with the rest of the country. More than half of all U.S. states, including Texas, allow medical marijuana use as of early 2018, although Texas’ medical marijuana program is one of the country’s most restrictive. The federal Controlled Substances Act (CSA), however, still classifies marijuana in its most restricted schedule. Various efforts to challenge the constitutionality of the CSA’s marijuana classification have failed. A recent lawsuit filed by medical marijuana users, including a young girl from Texas who had to move to Colorado for epilepsy treatment, challenged the CSA’s marijuana scheduling on Due Process grounds. The court ruled against them and granted the defendants’ motion to dismiss, partly on procedural grounds. Washington, et al. v. Sessions, et al., No. 1:17-cv-05625, opinion (S.D.N.Y., Feb. 26, 2018).

According to the CSA, a Schedule I controlled substance “has a high potential for abuse,” has “no currently accepted medical use,” and “lack[s]…accepted safety for use…under medical supervision.” 21 U.S.C. § 812(b)(1). The statute classifies “marihuana” directly alongside drugs like LSD, peyote, and heroin. Id. at § 812(c)(I). The Attorney General has authority to review the schedules and to remove a drug upon a finding that it “does not meet the requirements for inclusion in any schedule.” Id. at § 811(a)(2).

The U.S. Supreme Court struck down a challenge to the CSA under the Commerce Clause in Gonzales v. Raich, 545 U.S. 1 (2005). The plaintiffs argued that Congress did not have the power to prohibit them from growing marijuana for their own personal use in compliance with state medical marijuana laws. The court compared the CSA’s marijuana prohibition to federal laws regulating wheat production, and it held that the CSA “is squarely within Congress’ commerce power” because even production solely for personal use “has a substantial effect on supply and demand in the national market.” Id. at 19.

The plaintiffs in Washington challenged the CSA on several constitutional grounds, including claims that the inclusion of marijuana in Schedule I violates their Due Process rights. They alleged that Congress did not base its classification of marijuana on medical or scientific evidence, but instead on hostility on the part of the Nixon administration to at least two groups:  Vietnam War protesters and African Americans. The classification therefore fails a rational basis review, they argued, and should be declared unconstitutional.

The court held a hearing on the defendants’ motion to dismiss in mid-February 2018. At the end of February, it issued an opinion and order granting the motion. The plaintiffs had not exhausted their administrative remedies, the court held, citing the procedures for petitioning the Drug Enforcement Administration established in § 811. In dismissing the Due Process claims, the court cited a decision ruling against a challenge to federal marijuana law on Equal Protection grounds, United States v. Green, 222 F.Supp.3d 267 (W.D.N.Y. 2016).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified marijuana crime attorney for over 20 years, defends people against charges in West Texas state and federal courts. To schedule a confidential consultation with a skilled and experienced criminal justice advocate, contact us today online or at (432) 687-5157.

More Blog Posts:

U.S. Senate Committee Retains Federal Ban on Interference with State Medical Marijuana Programs, as Texas Issues First Medical Marijuana License, Texas Criminal Lawyer Blog, November 2, 2017

Federal Appellate Court Identifies Additional Consequence of Conflict Between Federal and State Marijuana Laws, Texas Criminal Lawyer Blog, November 2, 2017

Federal Legislation Protecting State Implementation of Medical Marijuana Laws Remains in Effect – for Now, Texas Criminal Lawyer Blog, November 2, 2017