Marijuana Moment: U.S. Supreme Court To Discuss Case Challenging Federal Marijuana Prohibition This Week

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U.S. Supreme Court justices are scheduled to meet this week to discuss a much-anticipated case challenging the constitutionality of federal marijuana prohibition—an issue that even one of the bench’s more conservative members, Justice Clarance Thomas, has previously argued must be resolved amid the state legalization movement.

While it remains unclear whether the court will ultimately take up the issue, a number of interested parties have urged action. And justices put the case, Canna Provisions v. Bondi, on the agenda for a closed-door conference meeting on Friday to consider their options.

Massachusetts-based marijuana businesses are asking the court to take their case because they argue federal law unconstitutionally prohibits intrastate cannabis activity, contravening the Commerce Clause.

That issue was raised in amicus briefs filed by supporters of the suit over recent weeks. That includes a public interest law firm representing a man who says federal law infringed on his property rights, libertarian think tank the Cato Institute and the Koch-founded Americans for Prosperity Foundation.

The powerhouse law firm Boies Schiller Flexner LLP submitted their petition for writ of certiorari from the court on behalf of their cannabis industry clients in October, and the Justice Department subsequently declined the opportunity to file a brief for or against the case’s consideration by the justices.

A lead attorney representing the petitioners recently told Marijuana Moment that he’s “hopeful”—albeit somewhat “nervous”—about the prospect of justices ultimately taking up the matter and deciding to address the key legal question about the constitutionality of federal cannabis prohibition.

“Time is of the essence,” Josh Schiller said, noting the dramatic shift in public opinion and state laws governing cannabis. “We think that this is the right time for this case because of the need—the industry needs to get relief from federal oversight at the moment.”

A U.S. appeals court rejected the arguments of the state-legal cannabis companies the firm is representing in May. It was one the latest blows to the high-profile lawsuit following a lower court’s dismissal of the claims. But it’s widely understood that the plaintiffs’ legal team has long intended the matter to end up before the nine high court justices.

Four justices must vote to accept the petition for cert in order for the court to take up the case. It is not clear how soon the decision on granting review will be announced, and it is possible the case could be scheduled for further discussion at another private conference following Friday’s meeting.

One of the court’s justices, Thomas, said in 2021 that the federal government’s inconsistent approach to marijuana policy ought to be resolved, suggesting that outright national prohibition may be unconstitutional.

“Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” Thomas said at the time.

“This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” he said, adding that “though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich, has sent mixed signals on its views.”

Thomas’s comments seemed to suggest it’d be appropriate revisit the precedent-setting case, Gonzales v. Raich, where the Supreme Court narrowly determined that the federal government could enforce prohibition against cannabis cultivation that took place wholly within California based on Congress’s authority to regulate interstate commerce.

The initial complaint in the current case, filed in U.S. District Court for the District of Massachusetts, argued that government’s ongoing prohibition on marijuana under the Controlled Substances Act (CSA) was unconstitutional because Congress in recent decades had “dropped any assumption that federal control of state-regulated marijuana is necessary.”

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At oral arguments on appeal late last year, attorney David Boies told judges that under the Constitution, Congress can only regulate commercial activity within a state—in this case, around marijuana—if the failure to regulate that in-state activity “would substantially interfere [with] or undermine legitimate congressional regulation of interstate commerce.”

Boies, chairman of the firm handling the case, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others.

Judges, however, said they were “unpersuaded,” ruling in an opinion that “the CSA remains fully intact as to the regulation of the commercial activity involving marijuana for non-medical purposes, which is the activity in which the appellants, by their own account, are engaged.”

The district court, meanwhile, said in the case that while there are “persuasive reasons for a reexamination” of the current scheduling of cannabis, its hands were effectively tied by past U.S. Supreme Court precedent in Raich.

This comes in the background of a pending marijuana rescheduling decision from the Trump administration. President Donald Trump said in late August that he’d make a determination about moving cannabis to Schedule III of the CSA within weeks, but he’s yet to act.

Meanwhile, in October the Supreme Court agreed to hear a separate case on the constitutionality of a federal law prohibiting people who use marijuana or other drugs from buying or possessing firearms. The Trump administration has argued that the policy “targets a category of persons who pose a clear danger of misusing firearm” and should be upheld.

Photo elements courtesy of rawpixel and Philip Steffan.

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