Federal circuit court sets December hearing for lawsuit seeking to legalize marijuana

A year-old lawsuit challenging federal marijuana prohibition has made it to the First Circuit Court level, with a hearing now scheduled for Dec. 5, after a lower federal court in Massachusetts dismissed the case in July. The plaintiffs in the case always intended for it to heard – eventually – by the U.S. Supreme Court.

Although the case was tossed by Massachusetts’ U.S. District Court Judge Mark Mastroianni, the cannabis company plaintiffs – led by high-profile attorneys David Boies and Josh Schiller – refiled the case immediately in the First Circuit Court of Appeals and contend that their original argument holds firm.

In essence, Massachusetts-based Canna Provisions – along with several other large marijuana companies, including multistate operator Verano Holdings Corp. (VRNO:CA) (OTCQX: VRNOF) – assert that the ongoing development of the national U.S. marijuana market in scores of states has undermined the 2005 U.S. Supreme Court precedent that upheld the federal prohibition on cannabis.

Other big-name marijuana players, including Ascend Wellness Holdings (CSE: AAWH-U.CN) (OTCQX: AAWH), TerrAscend Corp. (TSND:CA) (OTCQX: TSNDF) and Green Thumb Industries Inc. (CSE: GTII) (OTCQX: GTBIF), have also signed on as plaintiffs, along with Wiseacre Farm Inc. and entrepreneur Gyasi Sellers.

Mastroianni disagreed that there is a constitutional right to engage in commercial cannabis and ruled in July that Congress still has the power to regulate federally controlled drugs, including marijuana, based on the 2005 U.S. Supreme Court precedent Gonzales v. Raich.

“There is simply no precedent for concluding that plaintiffs enjoy a fundamental right to cultivate, process and distribute marijuana. No such right is enumerated in the Constitution,” Mastroianni wrote in July.

The U.S. Department of Justice wrote in a court brief filed on Oct. 10 with the First Circuit that the case is a simple one for the court to decide, based on clear-cut precedent from the 2005 case.

“It has long been established that Congress may regulate intrastate commercial conduct as part of a larger national scheme, and it was therefore undisputed in Raich that Congress could regulate the intrastate market for marijuana,” the DOJ filing asserts. “It was clear even before Raich that the position plaintiffs advance here is without merit.”

The upcoming hearing will feature oral arguments by both the plaintiffs and the U.S. Department of Justice at the First Circuit’s courtroom in Boston, according to court records.

Schiller told Green Market Report in July that the case is proceeding essentially as planned, and that the strategy was always a multiyear one designed to reach the U.S. Supreme Court.

If the July dismissal is also upheld by the First Circuit Court, the next step would be to petition the U.S. Supreme Court for a hearing. If that’s granted, Schiller said in July, the case could be heard by the high court as soon as next summer, with a ruling possibly sometime in the fall of 2025, although he said the timeline could stretch into 2026.