Challenging Cannabis Prohibition: Lawyer Behind Same-Sex Marriage Takes On Federal Policy, Citing Justice Thomas' Critique

"The signs are all pointing in the right direction. Let's just hope the speed picks up," says Josh Schiller, a partner at Boies Schiller Flexner, speaking about the progression of a Massachusetts-based lawsuit that could reshape the cannabis industry. The case challenges the federal government's enforcement of the Controlled Substances Act (CSA) against state-legal cannabis businesses, arguing that the federal approach violates constitutional principles.

At the center of the lawsuit is Justice Clarence Thomas' critique of federal cannabis policy. In 2021, Thomas called the federal government's stance "half in, half out," highlighting its contradictory approach to state-legal cannabis markets. Schiller's team argues that these contradictions undermine the rationale of the Supreme Court's 2005 decision in Gonzales v. Raich, which upheld federal authority under the Commerce Clause.

A New Era Of Legal Challenges

Filed in Massachusetts, the case seeks to address what Schiller describes as a fundamental shift in federal cannabis policy. In Raich, the federal government successfully argued that a consistent national prohibition was necessary to combat the illicit market. However, Schiller points to subsequent federal actions, such as congressional riders protecting state medical cannabis programs, as evidence that the government has abandoned its eradication strategy.

"Congress has taken steps to move away from the eradication policy," Schiller explains during the interview. He cites examples like the federal allowance of recreational cannabis sales in Washington, D.C., to show that federal priorities have evolved.

The lawsuit also addresses the practical challenges faced by cannabis businesses operating under the shadow of federal prohibition. "The financial consequences imposed by the federal government's continued overhang of illegality has consequences," Schiller says. He highlights issues such as excessive taxation under IRS Code 280E, limited access to banking and loans, and the reliance on cash-based operations due to federal banking restrictions.

Stakes For The Industry

If successful, the lawsuit could remove significant barriers for cannabis businesses, including the tax penalties imposed by 280E. "Everyone in this industry knows the taxation is discriminatory," Schiller notes, referring to how cannabis businesses are taxed on revenue rather than profit.

The case could also open the door to retroactive tax refunds, potentially worth billions, and pave the way for broader financial reforms. Schiller acknowledges that these changes could have transformative effects on the industry, leveling the playing field for businesses operating within state-legal frameworks.

What's Next?

Oral arguments in the U.S. Court of Appeals for the First Circuit are scheduled for December 5, 2024. Schiller explains that the court could either uphold the government's motion to dismiss or allow the case to proceed. If the plaintiffs are unsuccessful, the next step would be petitioning the Supreme Court to hear the case, although Schiller acknowledges that the Court takes on a limited number of cases.

"They're very selective," Schiller says of the Supreme Court. "They hear a very small single-digit percentage of the cases that they take on." However, Schiller believes the case could have appeal for some justices, particularly those like Justice Thomas, who have previously critiqued federal cannabis policy. “We also believe that Justice Gorsuch, who's a well-known author of federalist principles, would be interested in a case like this,” he adds.

Schiller emphasizes that a favorable ruling could fundamentally alter how the federal government interacts with state-regulated cannabis markets, potentially setting a precedent for other industries navigating federal-state conflicts.

A Pivotal Moment For Federalism

As the case moves forward, its implications extend beyond cannabis, touching on larger questions of federalism and constitutional authority. Schiller stresses the need for the courts to reassess how federal policies align with state-legal frameworks.

The plaintiffs argue that the federal government's continued criminalization of cannabis businesses operating lawfully under state laws creates unnecessary and discriminatory burdens, from excessive taxation to restricted access to financial services.

Schiller's team views the lawsuit as a step toward bridging the gap between federal actions and the progress made by states in regulating cannabis markets. The outcome could shape the future of cannabis policy in America, offering much-needed clarity for businesses and regulators alike.