United States: Federal Lawsuit Seeks To Enjoin Enforcement Of Classification Of Cannabis As A Schedule I Substance

On July 24, 2017, a group of plaintiffs filed a federal lawsuit titled Washington, et al. v. Sessions, et al. in the Southern District of New York naming several defendants, including Attorney General Jeff Sessions and Acting Director of the Drug Enforcement Agency (DEA) Charles Rosenberg in their official capacities. The lawsuit challenges the constitutionality of the Controlled Substances Act of 1970 (CSA) as it pertains to cannabis and its Schedule I designation, stating: "Classifying cannabis as a 'Schedule I drug' is so irrational that it violates the U.S. Constitution." The lawsuit seeks (1) a declaration that the CSA is unconstitutional and (2) a permanent injunction preventing the government from enforcing the CSA as it pertains to cannabis.

CSA Classification Schedules

The CSA classifies controlled substances into five schedules based on the currently acceptable medical use of the substance and its potential for abuse or dependency. Schedule I is reserved for the most dangerous substances and requires a high potential for abuse, no medical use in treatment, and no ability to be used or tested safely, even under medical supervision. See 21 U.S.C. § 812(b)(1). Accordingly, Schedule I controlled substances cannot be prescribed and it is a federal crime to possess, distribute or dispense them. Other Schedule I substances include LSD, mescaline and heroin.

The DEA has the authority to reclassify a drug if new evidence becomes available. To do so, the DEA must obtain a scheduling recommendation from the Food and Drug Administration (FDA) as to whether the controlled substance should be rescheduled. The factors the FDA must consider in making such a recommendation include the substance's history of, potential for and significance of abuse, in addition to current scientific evidence regarding the substance, its pharmacological effect, the likelihood of dependence and whether or not it poses a risk to public health. See 21 U.S.C. § 811(c). The lawsuit also contends that the current petition process for reclassification is illusory and irrational.

Claims in the Lawsuit

The lawsuit is brought by five plaintiffs including former NFL player Marvin Washington, two young children who require medical marijuana to control epilepsy and symptoms of Leigh's Disease, a U.S. Military veteran suffering from post-traumatic stress syndrome, and the Cannabis Cultural Association, Inc., a nonprofit founded to provide a forum for minorities to develop a presence in the cannabis industry. They contend the CSA's treatment of cannabis violates the Fifth Amendment Due Process Clause and the fundamental rights of travel and free speech; and that congressional enactment of the CSA expanded the legislature's powers beyond that contemplated by Article I in violation of the Commerce Clause. The lawsuit alleges that Schedule I status is not consistent with the government's own admissions and actions. It states:

[T]he Federal Government had admitted repeatedly in writing and implemented national policy reflecting that Cannabis does in fact, have medical uses and can be used and tested safely under medical supervision ... On that basis, the federal government has exploited cannabis economically for more than a decade by securing a medical cannabis patent and entering into license agreements with medical licensees.

The complaint further alleges that cannabis's Schedule I status has a racially discriminatory past. It states that "the Nixon Administration ushered the CSA through Congress and insisted that cannabis be included on Schedule I so that African Americans and war protesters could be raided, prosecuted and incarcerated without identifying the actual and unconstitutional basis for the government's actions." 

The success of plaintiffs' fundamental due process violation claims will depend on the defense's ability to establish that the government's designation of cannabis as Schedule I under the CSA is the least restrictive means of achieving a compelling − e.g., necessary or crucial − government interest. The court will apply a rational-basis standard to plaintiffs' remaining Fifth Amendment claims, requiring plaintiffs to show that the CSA is not rationally related to a legitimate government interest. 

Takeaways

It is anticipated the government will seek dismissal of the lawsuit based on a lack of standing. On the merits, the plaintiffs make some compelling arguments. Moreover, public support for marijuana legalization is at an all-time high. Indeed, 86 percent of respondents to a Harvard-Harris poll taken in July 2017 expressed support for legalizing use of the plant in some form. Nevertheless, we anticipate plaintiffs will have an uphill challenge in convincing the federal court to declare the CSA unconstitutional and enjoin the government from enforcing the CSA as it pertains to cannabis. Success by the plaintiffs, however, would have significant consequences for the cannabis industry. An order holding the Schedule I status of cannabis unconstitutional would go a long way toward resolving the intractable problem of federal illegality, which in turn would allow the cannabis industry better access to banks, interstate commerce, tax deductions and other protections enjoyed by the legal market.   

Wilson Elser's Cannabis Law team will closely monitor and report on this litigation as it develops.

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