Happy New Year!
Yesterday, the parties filed their Schweder case post-evidentiary hearing briefs, available here: Gov't Brief, Amended Defense Brief [1/7/15: I replaced original brief here with amended brief filed 1/5/15, which includes inadvertently omitted tables], and Defense Motion to File Oversized Brief [1/7/15: court granted motion for oversized brief on 1/5/15]. To recap, the evidentiary hearing concerned whether the government's continued inclusion of marijuana as a Schedule I controlled substance, i.e., one with no accepted medical use and a high potential for abuse, violates the guarantee of equal protection of our laws inherent in the Fifth Amendment's Due Process Clause. Although not the subject of the evidentiary hearing, the defense also argues that the federal government's prosecution of medical marijuana violates the constitutional principle of Equal Sovereignty. The Court's final ruling on the defense's motion to dismiss is not expected until after the February 4 arguments. [A few weeks ago, the defense also filed this Supplemental Declaration of Jennie Stormes. The district court has yet to rule on the government's objection to it.]
In short, the defense brief argues that the evidence failed to support the continued inclusion of marijuana in Schedule I under either strict scrutiny or active rational basis review and the government's state-based enforcement of federal drug laws in marijuana cases violates Equal Sovereignty. Defense attorneys Zenia Gilg and Heather Burke do a good job of incorporating recent federal government actions into their constitutional arguments, most notably Section 538 of the Consolidated and Further Continuing Appropriations Act, 2015, which President Obama signed into law on December 16, 2014. This new law bars the use of U.S. Department of Justice funds to prevent a number of listed states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." This law not only supports the defense's Equal Sovereignty argument, but as the defense argues, "how is it Congress can justify a finding that marijuana has no medical benefit while demanding that the distribution of medical marijuana be protected from federal government interference. This is not only irrational, it is absurd." Defense Brief, at 36.
The government counters that there is a rational basis for marijuana's continued exclusion in Schedule I, so that the defense's equal protection argument fails. It also argues that (1) the defendants lack standing to challenge marijuana's Schedule I listing; (2) the D.C. Circuit has exclusive jurisdiction over classification challenges; and (3) the government's conduct does not violate Equal Sovereignty principles. The government predictably ignores the Section 538 amendment that prohibits funding of federal government attempts to interfere with state medical marijuana laws.
For those who have been asking me, it's too early to tell how Section 538 will impact current, past, and future federal medical marijuana cases. But this Schweder briefing is an early example of how defense attorneys can use it to challenge federal medical marijuana prosecutions.
