Attorney General Jeff Sessions came into the new year swinging when he rescinded the Cole Memo in early January, allowing the federal government to prosecute state-legal cannabis businesses. To many, it looked like a response to California, which had officially legalized recreational marijuana just days earlier. But when the AG made his announcement to scrap the Department of Justice’s protections for legal marijuana states, his lawyers knew that the memo was being used as evidence in a lawsuit which aims to legalize marijuana nationwide.
The families of two young medical marijuana patients, a veteran with post-traumatic stress disorder, the Cannabis Cultural Association and former professional football player Marvin Washington are suing Jeff Sessions, the Department of Justice (DOJ), the DEA and its chief administrator, on the grounds that cannabis prohibition violates the Constitution. Among several claims, the plaintiffs’ legal team is arguing that the federal marijuana ban violates states’ rights.
Under something known as the Commerce Clause in the Constitution, the federal government is barred from interfering with markets which are contained within states. The case argues that the Cole Memo helped that containment by giving states the right to regulate their own cannabis markets without federal interference. The Cole Memo also ordered the feds to leave legal state cannabis industries alone except for in specific scenarios like preventing the diversion of cannabis from a legal state from sneaking into cannabis in an illegal state.
According to court documents filed on January 8, the DOJ’s lawyers believed that killing the Cole Memo could help their case. In a letter to Judge Alvin K. Hellerstein of the Southern District Court of New York, where the case will be admitted or dismissed on February 14, Sessions lawyer, Samuel Dolinger, noted that the Cole Memo’s rescission was a significant development in the case.
“How convenient,” reads a January 10 response from Michael Hiller, an attorney for the families suing Sessions. “Now, defendant Sessions, less than a week after defendants submitted their reply on the motion to dismiss, has suddenly decided, without any warning or explanation, that the Cole Memorandum is rescinded.”
Over time, states have clearly taken the lead on legalization and are at the center of the constitutional challenge being brought against the government in this case. Today, more than 60 percent of Americans live in states where marijuana is legally a medicine, while it remains illegal under the federal Controlled Substances Act (CSA).
The suit aims to remove cannabis from that list of controlled substances and have it regulated much like alcohol. One of the ways it could do that is by challenging the Commerce Clause or the federal government’s right to interfere with state markets, including the marijuana market. But this wouldn’t be the first time a Commerce Clause challenge was brought against the government. In fact, Sessions’ lawyers argue that this case has already been decided by the Supreme Court.
In a 2005 case known as Gonzales v Raich, California resident Angel Raich argued for the right to grow her own medical marijuana, which had been legal in her state since 1996. In this case, the court ruled that the potential for home-grown marijuana to cross state lines makes it a federal issue despite the fact Raich intended to grow for personal use, not for sale on any type of market.
“We truly believe that the Supreme Court got it wrong,” says Lauren Ruddick, an attorney for the side that’s suing Sessions. That’s not something which is beyond the realm of possibility. After all, many of the Supreme Court’s decisions have been overturned in the past, including the case which once upheld slavery as a property right.
At the time of the Raich case, even some members of the Supreme Court believed the decision went too far because Angel Raich never intended to sell the marijuana she grew. Justice Clarence Thomas, for one, believed the decision was so poorly applied that it could be interpreted as a license to allow the federal government to regulate anything it wanted regardless of whether money changed hands.
“If the majority is to be taken seriously,” Thomas wrote in his dissent, “the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.”
In the current case, Ruddick argues that circumstances have changed since the Raich decision. The Cole Memo, which was enacted nine years after the Raich decision, is part of an argument that federal government has essentially ceded the enforcement of the Controlled Substances Act to the states.
What’s more, when Raich brought her case back to court in 2007, the Ninth Circuit upheld the Supreme Court’s decision but offered hope for the current case against Sessions. The ruling made by the Ninth Circuit Court, just two years after the Gonzalez v Raich case, suggested that the Supreme Court’s decision could be overturned if the circumstances surrounding the case change in a way that would affect an overwhelming number of Americans.
“For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental,” Judge Harry Pregerson noted in his final opinion, “Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected.”
Today, 29 states and the District of Columbia have legalized marijuana for medical purposes. This represents a clear majority of states and a distinct change in circumstances.
In that time, the Ninth Circuit Court has also upheld provisions like the Rohrabacher-Blumenauer amendment as recently as 2016, defending the rights of medical marijuana states to regulate their own cannabis markets. The Department of Justice did not respond to multiple requests for comment on the Cole Memo or the case.
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