Medical marijuana advocates filed a petition with the US Supreme Court declaring federal cannabis prohibition unconstitutional. The lawsuit, made against the Drug Enforcement Administration (DEA), was docketed with the nation’s highest court earlier this month.

The move is the latest legal challenge against federal cannabis prohibition taken by a coalition of medical marijuana patients and activists who first filed the original lawsuit in lower courts back in 2017. In that case, a federal district court judge dismissed the lawsuit out of hand, arguing the matter “is an administrative one, not one premised on the constitution.”

The coalition then took their case to the federal appeals court which neither overturned nor upheld the original ruling. Rather, the appeals court ruled that it reserved the right to intervene against the DEA if the agency does not promptly consider a change to marijuana’s legal status, so those who depend on its therapeutic benefits do not unduly suffer. In essence though, the appeals court agreed with the federal district judge that, as an administrative matter, the coalition should first make use of existing, non-legal channels such as by petitioning the DEA to ask that marijuana be reclassified.

The plaintiffs chose not to pursue administrative measures for their case on the basis that any such attempts would be rebuffed by the DEA, leading the federal appeals court to rule “it is hereby ORDERED that the district court’s judgment is AFFIRMED and the case is DISMISSED with prejudice.”

Following the ruling, lawyers representing the coalition of medical marijuana patients and activists said they were left with no choice but to take the case to the Supreme Court.

“[W]e will file a petition for a writ of certiorari with the United States Supreme Court in the hope that Plaintiffs may finally be afforded the opportunity to prove at trial, their claims that the misclassification of cannabis under the Controlled Substances Act (CSA) violates their rights under the United States Constitution,” the group said in a statement after the federal appeals court ruling.

The law firm Hiller PC has now filed the petition which argues marijuana’s status as a Schedule I drug under the CSA is “unconstitutionally irrational and violates plaintiffs’ fundamental rights.”

The lead counsel for the plaintiffs, Michael Hiller, believes the Supreme Court will agree to take on the case given due to the “mass uncertainty” regarding medical cannabis laws throughout the country which often lead to conflicting court decisions. The fact the issue affects millions of Americans who are registered medical marijuana patients is also likely to encourage the Supreme Court to hear the case.

The three questions asked of the Supreme Court in the latest filing are as follows:

“1. Can Congress, consistent with the Due Process Clause of the Fifth Amendment to the U.S. Constitution, criminalize medical cannabis without exception, even for patients who require its daily administration to live?

2. Given the three requirements for designation as a Schedule I drug under the CSA (21 U.S.C. § 812(b)(1)), is the classification of cannabis so irrational that it violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution?

3. Can Congress, consistent with the Due Process Clause of the Fifth Amendment to the U.S. Constitution, require persons aggrieved by the classification of a substance under the CSA to submit to an administrative review process that cannot, as a matter of law, provide the relief they seek?”

This isn’t the only marijuana-related legal challenge the DEA is currently facing. Last year, a group of scientists brought a lawsuit against the DEA for failing to live up to its 2016 pledge to ensure expanded access to marijuana for research purposes. In March, the DEA finally announced proposed changes to rules governing the production and distribution of controlled substances that would allow scientists greater access to research-grade cannabis. It was later revealed that a major factor in the DEA’s inaction on the issue was a memo from the Department of Justice indicating that expanded access to marijuana under the current rules would contravene the US’s obligations to international drug treaties.The plaintiffs in the case against the DEA will take heart from a recent ruling by the Mexican Supreme Court which determined the country’s prohibition on marijuana use and possession to be unconstitutional. The ruling gave lawmakers a deadline by which to pass marijuana legalization legislation. This deadline has been extended several times due to political disagreements on the bill’s content and, more recently, the COVID-19 pandemic. Mexican lawmakers now have until December, 2020, to pass legislation to legalize cannabis.

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