Lawyers representing a group of scientists and military veterans filed a comprehensive brief in federal court this week, outlining their case challenging decisions about the classification of marijuana made by the Drug Enforcement Administration (DEA).
The plaintiffs initially filed their lawsuit against the federal agency in May, contending that DEA’s justification for maintaining a Schedule I status for cannabis is unconstitutional. DEA attempted to quash the case by filing a motion to dismiss, but the U.S. Court of Appeals for the Ninth Circuit rejected that request in August.
On Tuesday, the attorneys filed the petitioners’ brief to officially set the case in motion. The 117-page document goes over background information on marijuana’s scheduling and past requests to reclassify the plant. It also makes the legal argument that DEA’s justification for maintaining its strict prohibition on cannabis is unconstitutional.
The lawsuit—brought by plaintiffs including Sue Sisley of the Scottsdale Research Institute, the Battlefield Foundation and military veterans Lorenzo Sullivan and Gary Hess— focuses primarily on DEA’s denial of a petition to reschedule marijuana earlier this year. In that case, the petitioner argued that the agency’s claim that cannabis has no currently accepted medical value is invalid given that a majority of states have legalized the plant for therapeutic purposes.
“Can DEA deny that marijuana has a ‘currently accepted medical use in treatment in the United States’ when more than two-thirds of the States have enacted legislation greenlighting marijuana’s use as medicine?” the newly filed briefing asks. “The unambiguous text of [federal statute], canons of construction, the [Controlled Substances Act’s] history and purpose, and common sense all converge on a single, resounding answer: ‘No.’”
The plaintiffs make a second legal argument that’s more nuanced. They say that DEA’s insistence that cannabis must be placed in either Schedule I or Schedule II is unconstitutional because it “delegates legislative power twice: first to a non-governmental entity and second to the Attorney General.” The “non-governmental entity” is a reference to international treaties that the agency has cited as restricting its authority to reschedule cannabis.
In order to provide relief, the attorneys want the court to mandate that DEA take three steps: First, it should initiate a rulemaking process on rescheduling. Next, it should complete the rulemaking within a year of the court’s order. Finally, it should make sure that any scheduling decision is consistent with a statute that the attorneys say prevents DEA from “denying that marijuana has a currently accepted medical use in the face of widespread State acceptance.”
Matt Zorn and Shane Pennington, attorneys for the plaintiffs, told Marijuana Moment that getting DEA to initiate formal rulemaking would open the floodgates, enabling experts and stakeholders to lay out the abundance of scientific and legal literature that contradicts the rationale behind placing cannabis in Schedule I.
And if the court agrees with their argument challenging DEA’s stance on marijuana’s medical value, they see no scenario where the plant could still be kept in either Schedule I or moved slightly down the list to Schedule II.
Zorn said that what they’re essentially asking DEA to do is “to take prompt action to reconsider the petition under the right interpretation of the statute.”
“If they do that—because the right interpretation of the statute necessarily means that state acceptance is currently accepted medical use—on remand they won’t be able to deny the petition, at least for the reasons that they said,” he said. “And they won’t ever be able to say again that marijuana has no currently accepted medical use when the vast majority of the states say otherwise.”
The plaintiffs were also successful in forcing DEA to issue an update on the status of applications to become federally authorized cannabis manufacturers for research purposes and then got the Justice Department to hand over a “secret” memo that DEA allegedly used to justify a delay in deciding on those proposals.
Meanwhile, DEA could also become involved in a separate U.S. Supreme Court case challenging its marijuana scheduling actions.
In a petition filed in July and formally docketed for a private conference at the high court next week, a coalition of patients and advocates asked the justices to take up their case challenging the constitutionality of federal cannabis prohibition. This comes after a series of rulings in lower courts since the original lawsuit was filed in 2017.
Separately, a federal court recently ruled that California regulators must comply with a DEA subpoena demanding information about marijuana businesses that they are investigating.
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