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Court Tosses Constitutional Challenge To Pot Prohibition

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A Massachusetts federal judge on Monday granted the U.S. Department of Justice's bid to dismiss a constitutional challenge to federal marijuana prohibition, delivering a blow to an effort brought by a group of cannabis companies represented by litigator David Boies.

In a 15-page order, U.S. District Judge Mark G. Mastroianni rejected the marijuana businesses' argument that the circumstances undergirding a 19-year-old U.S. Supreme Court precedent on cannabis policy had changed so much that the decision was no longer applicable.

The district court said the finding in Gonzales v. Raich , the 2005 decision the cannabis companies sought to challenge, was still binding and Congress still had authority under the commerce clause to regulate marijuana activities through the Controlled Substances Act, even if those activities were wholly intrastate and state-authorized.

"Plaintiffs' argument, that the factual differences between their allegations and those considered in Raich simply permit this court to avoid application of Raich and substitute its own commerce clause analysis, has no realistic persuasive force," Judge Mastroianni wrote.

In Raich, the high court held that the federal prohibition on cannabis overrode state legalization efforts because Congress had an interest in preventing state-authorized marijuana from reaching interstate markets.

On Monday, Judge Mastroianni noted that the context in which the high court issued its Raich decision — California's then-nascent medical marijuana cooperative model — was markedly different from the state-regulated retail marijuana markets online in nearly two dozen states.

"Given the scale of plaintiffs' operations, the court cannot find Congress lacks a rational basis for concluding plaintiffs' activities substantially affect interstate commerce without ignoring the Supreme Court's broadly-worded holding in Raich," Judge Mastroianni wrote.

"To reach a different outcome would require this court to independently determine that the underlying analysis in Raich cannot survive the developments in intrastate regulatory schemes and federal enforcement policy alleged by plaintiffs," the decision said.

The court also rejected the cannabis companies' argument that the specter of CSA enforcement violated their right to substantive due process, finding that there was no precedent for a fundamental right to grow or consume marijuana.

"Although many more states have since legalized marijuana, for both medical purposes and adult use, there is still no national consensus on this issue," the decision said. "Even if there were universally applicable laws permitting the cultivation, processing, and distribution of marijuana, legalization alone neither requires nor permits this court to recognize a fundamental right to engage in such conduct."

The order comes a little more than a month after attorney David Boies of Boies Schiller Flexner LLP argued in court, on behalf of the marijuana companies, that the Raich decision was due for a reexamination, although Judge Mastroianni appeared skeptical at the time that a trial court judge could ignore a Supreme Court precedent.

"Plaintiffs can pursue their claims and seek the attention of the Supreme Court," Judge Mastroianni wrote Monday. "They also are free to advocate for marijuana to be reclassified or removed from the CSA."

The coalition of plaintiffs includes entities engaged in state-legal medical and adult-use cannabis in Massachusetts, such as multistate giant Verano Holdings Corp., retailer Canna Provisions Inc., cultivator Wiseacre Farm Inc. and entrepreneur Gyasi Sellers, who operates a marijuana delivery service.

The lawsuit had the backing of publicly traded multistate operators Ascend Wellness HoldingsTerrAscend and Green Thumb Industries, as well as cannabis industry institutional investors Eminence Capital and Poseidon Investment Management.

Their October complaint alleged that although Congress has the power to ban interstate commerce of cannabis, the CSA represented a grievous overreach since it criminalizes conduct that takes place entirely within states that have legalized marijuana.

The government framed the plaintiffs' case in court filings as a "transparent entreaty" to overturn the precedential Raich ruling.

In an emailed statement Monday, Joshua I. Schiller of Boies Schiller Flexner LLP, an attorney for the cannabis companies, noted that the court found that the plaintiffs had standing to bring their challenge to the CSA and said the litigation was "moving to the next stage."

"On appeal we will continue to press our case that the federal government lacks any rational basis for banning state-regulated marijuana," Schiller said.

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