A federal appeals court on Thursday appeared poised to reject claims by several Massachusetts marijuana businesses that the longstanding federal prohibition on the drug is no longer constitutional, according to Reuters.
The businesses, represented by attorney David Boies, argued that the legal and legislative landscape surrounding marijuana has shifted significantly since the U.S. Supreme Court upheld the federal ban in 2005.
Boies told the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston that the original justification for the ban—rooted in Congress’s goal of eradicating marijuana nationwide—has effectively been abandoned. He pointed out that 38 states, including Massachusetts, now allow marijuana use for medical or recreational purposes. He also cited Congress’s actions since 2014 barring the U.S. Department of Justice from interfering with state medical marijuana programs and its 2010 approval of medical marijuana in Washington, D.C.
However, the judges seemed unconvinced that these developments undercut Congress’s authority to regulate marijuana under the Constitution’s Commerce Clause. U.S. Circuit Judge Julie Rikelman, a Biden appointee, noted that Congress’s broader objective remains unchanged: controlling the supply and demand of controlled substances. Chief U.S. Circuit Judge David Barron, appointed by Obama, questioned why specific legislative carve-outs, such as those shielding state medical marijuana programs, would indicate an intent to relinquish the federal ban entirely.
The case stems from a lawsuit filed by Massachusetts cannabis businesses, including Canna Provisions, delivery operator Gyasi Sellers, cultivator Wiseacre Farm, and multistate operator Verano Holdings. U.S. District Judge Mark Mastroianni previously dismissed the lawsuit, stating that only the Supreme Court could overturn its precedent in Gonzales v. Raich. In that 2005 decision, the high court upheld Congress’s authority to criminalize marijuana possession under the Controlled Substances Act, even in states where it is legal.
The plaintiffs argued that the reasoning in Raich has been undermined by recent developments. In 2021, Justice Clarence Thomas suggested the federal ban may no longer be “necessary or proper” in light of changes in marijuana policy. Additionally, the Justice Department has signaled a shift by moving to reclassify marijuana as a Schedule III drug, a decision expected to be reviewed in January.
The case, Canna Provisions Inc. v. Garland, could have far-reaching implications for the future of federal marijuana policy, though the judges’ questions suggested they remain skeptical of the plaintiffs’ arguments.
