Last week, the US Department of Justice (DOJ) instructed a federal appeals court to uphold a nationwide ban on cannabis, throwing efforts to overturn federal prohibition into doubt.
On Thursday, October 10, the DOJ filed a brief with the US Court of Appeals for the First District, arguing that Congress holds authority to regulate cannabis under its power to make laws necessary to regulate commerce between states, citing Supreme Court precedent.
This has put another nail in the coffin of a legal campaign from a collective of companies led by Verano Holdings Corp, alongside Massachusetts-based businesses Canna Provisions, Wiseacre Farm, and Treevit CEO Gyasi Sellers.
In May, Business of Cannabis reported that the four leading cannabis companies had hired prominent litigator David Boies to help overturn a 2005 Supreme Court ruling.
He was tasked with revisiting the case of Gonzales v. Raich in which it was ruled that federal prohibition must be maintained under the Controlled Substances Act (CSA) so as to avoid interstate commerce.
In July, the case was dismissed by a US state court, ruling that only the Supreme Court could make such a decision, and that lower courts must follow existing precedent unless otherwise instructed by the Supreme Court
According to Law 360, after launching an appeal, the campaign has now been rebuffed for a second time.
The companies argued that since so many states have legalized cannabis, the federal government shouldn’t continue enforcing the nationwide ban. They believe that the situation has fundamentally changed since the Supreme Court ruling in 2005.
In response, the DOJ emphasized that state-level legalization does not diminish federal authority. It reiterated that, according to Raich, state legalization of a controlled substance cannot limit Congress’s power under the Commerce Clause.
The collective also highlighted ongoing efforts by the Biden administration to reclassify cannabis to a Schedule III substance, however, the DOJ’s brief also highlighted that even if cannabis is rescheduled, it would remain subject to federal regulation, and the plaintiffs’ stance could undermine the regulatory framework for cannabis as a Schedule III substance.
