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).