In United States v. Schweder, et. al., No. 2:11-CR-0449-KJM, the EDCA Court yesterday apparently became the first court in the country to set an evidentiary hearing on defendants' constitutional claims that the continued inclusion of marijuana as a Schedule I controlled substance violates the Equal Protection Clause of the Fifth Amendment and the DOJ's enforcement policies violate the constitutional requirements of federalism and equal sovereignty. The evidentiary hearing is currently set for June 2, 2014, at 9:00 a.m. before Judge Mueller. The government is said to be bringing in attorneys from Main Justice in D.C. to handle the hearing. Here are the briefs: Defendants' Motion to Dismiss And Memorandum Of Law, Government's Opposition, and Defendants' Reply Brief.
The reply brief makes clear that defendants' motion is narrow. They are not asserting a fundamental right to use and distribute medical marijuana nor arguing that the current classification of marijuana as a schedule I controlled substance violates the Ninth Amendment. And the motion does not ask the Court to require the DEA to reclassify marijuana. Rather, the motion to dismiss and evidentiary hearing raise a number of interesting and unresolved legal questions as part of a challenge to the equal protection of our country's laws:
Is there any legitimate basis now for continuing to treat marijuana as a schedule I controlled substance without any accepted medical use in light of current scientific and medical research? Evidence presumably will be presented on the issue at the June 2 hearing.
Can the government constitutionally choose to prosecute people for the distribution of marijuana in some states, but not prosecute others involved in the same conduct in other states that have legalized marijuana? Isn't federal law supposed to apply equally to all nationwide? The motion to dismiss is based, in part, on the Cole Memo 8-29-13, which explains the federal government's policy of prosecuting people differently for federal marijuana offenses depending on which state they live. Doesn't this violate the constitutional principle of Equal Sovereignty of the States in our federal system?