It is well-known that Attorney General Jeff Sessions questionably linked the current opioid crisis to marijuana use (“The DEA said that a huge percentage of heroin addiction starts with prescriptions,” Sessions stated, “That may be an exaggerated number; they had it as high as 80%. We think that a lot of this is starting with marijuana and other drugs.”) This is the oft-repeated “gateway” theory, of course. And, who could forget Attorney Sessions’ remark that “good people don’t smoke marijuana?” My point here is that it should surprise absolutely no one that Attorney General Sessions intends to enforce federal law relating to marijuana even in states that have legalized recreational marijuana use, thereby ending the “don’t bother us, we won’t bother you” approach of the previous administration.
And, it should likewise be unsurprising that he will meet a great deal of resistance in doing so. Enter, Marvin Washington, et al. v. Jefferson Beauregard Sessions, III, et al. (United States District Court, Southern District of New York) one of the most recent attempts to push back against the Attorney General.
Marvin Washington (the former New York Jet turned marijuana entrepreneur), two medical marijuana patients, a combat veteran who uses marijuana to treat PTSD, and the Cannabis Cultural Association joined together to challenge the Controlled Substances Act classification of marijuana as a Schedule I drug (the schedule for drugs which have “high potential for abuse; no currently accepted medical use in treatment, and lack of accepted safety for use of the drug under medical supervision” such as heroin, LSD, and, currently, marijuana. Currently, methamphetamine is a lesser, Schedule II controlled substance, as “some currently accepted medical use in treatment exists.”)
The gist of the challenge by Washington was that the classification of marijuana as a Schedule I substance violated due process because there is no rational basis to classify marijuana as Schedule I substance—a substance with high potential for abuse, and for which there is no currently accepted medical use.
The Government argued, essentially, that the Court need not take up its time with this case, because marijuana’s classification as a Schedule I drug had been upheld, first in 1973, and then some thirty times in the D.C. Circuit Court of Appeals over the course of the past 30 years.
On its face, it might seem Washington’s crew would have an easy day in court, given that virtually his entire cast of plaintiffs were currently using marijuana for medical treatment.
This would, however, be to ignore the power of maintaining the status quo.
To understand where the Court ended up in the Washington case, one must first understand that it is critical to pursue the exact legal argument (due process, equal protection, etc.) that “fits” the legal vehicle (constitutional challenge, for example.) If, to take a rudimentary example, I allege that the possession of marijuana statute in the Texas Health and Safety Code is unconstitutional under equal protection, I would not file a Motion to Suppress to achieve the desired result. Instead, I would file a Motion to Set Aside the Information or Indictment premised on the unconstitutionality of the statute—the proper legal vehicle for such challenge.
In Washington, plaintiffs argued that the classification of marijuana as a Schedule I substance violated due process. The problem, as the Court rightly noted, is that this is a matter of administrative challenge (to the scheduling) not a constitutional challenge to the Controlled Substances Act itself. Meaning, plaintiffs’ problem was with the placement of marijuana as a substance in Schedule I—a decidedly administrative act—not to the scheduling scheme of the Controlled Substances Act itself.
And from this seemingly innocuous problem comes the knockout punch: because the classification of marijuana is an administrative complaint, and because a procedure exists to reclassify scheduled substances, and because that procedure was not followed, the lawsuit gets dumped for failure to exhaust the available administrative remedies.
Above, I mention the power of maintaining the status quo because the Washington opinion is clearly written by a judge sympathetic to Washington’s position—one who explicitly acknowledges that marijuana has medical benefits, etc. So how does a sympathetic judge end up ruling against a plaintiff who brings a cause the Court is already sympathetic to?
Experience seems to teach that the status quo is a powerful thing and is seldom interrupted. Imagine if the judge here had found the Controlled Substance Act’s classification of marijuana to be unconstitutional—across the U.S., federal law prohibiting the use and possession of marijuana would perhaps stop, motions for stays would be filed, comity between the courts would be argued, and chaos would reign. (Remember the district court decision enjoining enforcement of “Don’t Ask; Don’t Tell”? Currently, debate rages on about the ability of a district court to issue a “nationwide” injunction…) This would be bad. So, the status quo remains…for now.