Lawsuit Filed by Texas “Medical Marijuana Refugees” and Others Challenges Constitutionality of Federal Drug Law

Federal and state laws regarding both medical and recreational use are coming more and more into conflict. More than half of the states in the U.S., as well as the District of Columbia, allow the possession and use of marijuana for medical purposes. Federal law, on the other hand, classifies it alongside the most highly restricted controlled substances. The current U.S. Attorney General (AG) has repeatedly stated an intention to crack down on legal state medical marijuana programs. A group of medical marijuana patients, including a father and daughter who relocated from Texas to Colorado so that the daughter could obtain relief from intractable epilepsy, have filed suit against the AG and other federal officials and agencies. Washington, et al. v. Sessions, et al., No. 1:17-cv-05625, complaint (S.D.N.Y., Jul. 24, 2017). The plaintiffs allege that the federal government’s scheduling of marijuana as a controlled substance violates the Due Process Clause of the Fifth Amendment, unlawfully restricts some plaintiffs’ freedom of travel between states, and exceeds the authority conferred by the Commerce Clause.

Of the five schedules established by the Controlled Substances Act (CSA), Schedule I is the most restrictive. It is defined to include substances with a “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety for use…under medical supervision.” 21 U.S.C. § 812(b)(1). Schedule I has included “marihuana” since its original enactment. Id. at § 812(c)(I)(c)(10). The Washington lawsuit alleges that “the Federal Government does not believe, and…never has believed” that marijuana meets these three criteria. Washington, complaint at 4.

Texas is among the states that have authorized medical marijuana to some extent, although in Texas’ case, the extent is not far at all. The Texas Compassionate-Use Act only applies to “low-THC cannabis.” This means cannabis products that contain, at most, “0.5 percent by weight of tetrahydrocannabinols” and at least “10 percent by weight of cannabidiol.” Tex. Occ. Code § 169.001(3). This essentially minimizes the active component of marijuana, THC. It may only be prescribed for the treatment of intractable epilepsy after a patient has tried two “maximally titrated antiepileptic drugs” without success. Id. at § 169.001(2).

Two of the plaintiffs in Washington are former Texas residents. The daughter began having seizures at age seven and was diagnosed with intractable epilepsy. The family spent two years consulting with doctors and making regular trips to the emergency room. They eventually found that “whole-plant Cannabis containing high concentrations of THC” alleviated the seizures. Washington, complaint at 11. Because of Texas law, however, the family became “medical marijuana refugees” in Colorado. Id. at 12. The daughter is now 11 and has reportedly “gone more than two years seizure-free” because of medical marijuana. Id. She cannot travel outside Colorado, however, since the federal ban on marijuana makes taking it across state lines a felony.

The lawsuit alleges that the inclusion of marijuana in Schedule I is disingenuous, and it was originally motivated by the Nixon Administration’s desire “to suppress the rights and interests of…African Americans and protesters of the Vietnam War.” Id. at 5. It also argues that the CSA violates the plaintiffs’ freedom to travel between states. See Williams v. Fears, 179 U.S. 270 (1900).

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.

Board-certified marijuana crime lawyer Michael J. Brown has defended people against federal and state charges in West Texas courts since 1992. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a skilled and experienced criminal justice advocate.

More Blog Posts:

FDA Approves Clinical Trials of Schedule I Controlled Substance, Texas Criminal Lawyer Blog, November 2, 2017

Dissenting State Supreme Court Justice Criticizes Sentence for Marijuana Possession, Texas Criminal Lawyer Blog, May 25, 2017

DEA Approves Schedule I Drug for Clinical Trial by Medical Researchers, Texas Criminal Lawyer Blog, July 29, 2015

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