September 29, 2020

Federal Cannabis Lawsuit Appeal Receives Unprecedented Support

September 29, 2020
supreme court

The plaintiffs in a landmark lawsuit seeking to declare the federal law that criminalizes marijuana unconstitutional have received an enormous boost. A total of nine (9) amicus briefs have been filed in support of the plaintiffs’ appeal to the U.S. Supreme Court in Washington v. Barr. Among those who have submitted amicus briefs are seven members of Congress, including Earl Blumenhauer, Barbara Lee, Jamie Raskin, and Tulsi Gabbard; 19 major organizations; and two eminent cannabis researchers and scientists (see attached). “The organizations and individuals filing amicus briefs and the lawyers who drafted them are an all-star roster for the legalization movement,” said Fatima Afia, an Associate at Hiller, PC, pro bono co-counsel for the plaintiffs in Washington v. Barr. “We couldn’t be more pleased and honored to have their support.” 

“The Petition filed with SCOTUS in Washington v. Barr has received historic support from 19 organizations, plus two of the world’s leading cannabis scientists and seven members of Congress – all urging the Supreme Court to consider our appeal challenging the constitutionality of the Controlled Substances Act.  The Petition and amicus briefs will be considered by the Justices at a conference on October 9, 2020 – less than a month before voters in five states decide whether to legalize adult-use or medical cannabis in their home states (Montana, South Dakota, Arizona, New Jersey, and Mississippi).  If all five ballot initiatives are successful, and we have every reason to believe they will be, cannabis would be legal in some form in 43 states and territories while at the same time remaining completely illegal under federal law, further exacerbating the legal uncertainty and chaos that has been created by conflicting state and federal laws, court decisions, and policies, which harm millions of Americans every single day.  Despite these developments, Congress just delayed an historic vote on the MORE Act (legislation that would, among other things, legalize cannabis on the federal level), confirming what the members of Congress made clear in their amicus brief to SCOTUS — federal legalization legislation will never pass. 

Although devastated by the loss of Justice Ruth Bader Ginsburg, we remain hopeful that given the merits of our Petition and the strong support it has received, particularly from members of Congress including Representatives Earl Blumenauer and Tulsi Gabbard, the other Justices of the Court will give careful consideration to our constitutional arguments as well as the overarching national imperative of this issue, for which there is no legislative or administrative solution and which must be resolved by the Court.”

-Fatima Afia, Esq.
Hiller, PC

According to the CATO Institute, “among the thousands of [cert] petitions [filed each year] only a few receive support from amici.” As computed by the SCOTUS Blog, just eight cases since 2008 have inspired as many amicus brief as this appeal. Michael Hiller, lead pro bono counsel for the Washington v. Barr plaintiffs, offered an explanation for why this appeal has generated so much interest: “The briefs filed in support of our appeal are representative of what can only be described as national recognition, including by the federal government itself, that cannabis is safe and medically effective. Criminalizing cannabis under the pretext that it has no medical utility and is too dangerous to be administered even under strict medical supervision is not just absurd; it’s unconstitutionally irrational. The federal government owns at least two medical cannabis patents, distributes cannabis to patients around the Country under the auspices of the FDA’s Investigational New Drug Program, has acquiesced to legalization-programs in 38 U.S. States and Territories (70% of the Country), and has approved at least one medical cannabis drug (Epidiolex) for distribution to children without a prescription. Yet the federal government maintains that cannabis is as dangerous as heroin, has no medical uses in the U.S. and is too dangerous to administer – claims which do not square with reality and which place millions of Americans, and billions in investment capital, at risk.” 

The full list of amicus brief writers includes:

Organizations 

1. Minority Cannabis Business Association

2. Minorities for Medical Marijuana, Inc.

3. Americans for Safe Access

4. The Last Prisoner Project

5. Credo Science

6. American Journal of Endocannabinoid Medicine

7. The National Cannabis Industry Association (NCIA)

8. The Arcview Group

9. Athletes for Care

10. After The Impact Fund

11. Canna Research Foundation

12. NFL Sisters In Service, Inc.

13. Isiah International, LLC

14. International Cannabis Bar Association

15. National Organization for the Reform of Marijuana Laws (NORML)

16. Empire State NORML

17. New York City Cannabis Industry Association (NYCCIA)

18. Hudson Valley Cannabis Industry Association (HVCIA)

19. New York Cannabis Bar (CannaBar) 

Individuals 

1. Ethan Russo M.D.

2. Jahan Marcu Ph.D 

When asked why his clients weren’t satisfied with waiting for a legislative solution, Hiller’s answer came swiftly – “Congress passed a law that, on a daily basis, infringes upon the rights of Americans to treat with a lifesaving medication, and which has been used as a pretext to arrest and incarcerate persons of color. The remedy for this recurring and pervasive violation of the Constitution lies not with the legislative body that created the problem, but rather with the U.S. Supreme Court, the guardian of America’s constitutional rights.” 

A decision by the U.S. Supreme Court is expected during this 2020-21 Term.

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