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A United States appeals court seemed inclined to reject claims made by several marijuana businesses in Massachusetts, which argued that federal laws prohibiting cannabis are no longer constitutional.
The businesses, represented by prominent attorney David Boies, contend that significant changes since the Supreme Court upheld federal marijuana laws in 2005 make the prohibition outdated. Currently, 38 states have legalized medical or recreational cannabis. Boies argued that Congress’s original intent to eliminate cannabis nationwide has shifted, citing legislation and policy changes that reflect a more lenient approach.
Despite his arguments, the judges appeared skeptical. Judge Julie Rikelman, appointed by President Joe Biden, emphasized that Congress still aims to regulate controlled substances, including cannabis, to manage both legal and illegal markets. “That has not changed,” she noted, suggesting that federal regulation remains a valid objective.
The lawsuit, initiated last year, involves Massachusetts-based Canna Provisions, a cannabis retailer; Gyasi Sellers, who operates a cannabis delivery service; Wiseacre Farm, a grower; and Verano Holdings Corp. (CSE: VRNO) (OTCQX: VRNOF), a publicly traded multistate cannabis company. In July, Judge Mark Mastroianni, appointed by former President Barack Obama, dismissed their case, stating that only the Supreme Court could overturn its 2005 ruling.
In the 2005 ruling, the court held that Congress has the authority under the Commerce Clause to criminalize cannabis possession and use, even in states that legalize it for medical use under the CSA.
The plaintiffs argue that the 2005 rationale has been undermined by subsequent legal and policy developments. They cited a 2021 statement by Justice Clarence Thomas in which he questioned whether the reasoning behind the decision still holds.
Boies also highlighted congressional actions that reflect a changing approach to cannabis. In 2014, Congress prohibited the Justice Department from using federal funds to interfere with state medical cannabis programs. Additionally, in 2010, Congress allowed the use of medical cannabis in Washington, D.C. More recently, the DOJ moved to reclassify cannabis as a Schedule 3 substance, a less severe category than its current Schedule 1 status. A hearing on this potential reclassification is set for January 2025.
Despite these changes, Judge David Barron, another Obama appointee, expressed doubt that these legislative carve-outs indicate a complete shift in federal policy. He questioned how these isolated measures prove that the federal government has abandoned its stance, especially when the overarching prohibition on cannabis sales remains in effect.
This case, Canna Provisions Inc. vs. Garland, continues to highlight the tension between state-level legalization and federal prohibition, a conflict that has yet to be resolved.
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