No. 20-148
`
`In the
`Supreme Court of the United States
`
`MARVIN WASHINGTON, et al.,
`
`Petitioners,
`
`v.
`
`WILLIAM P. BARR, ATTORNEY GENERAL, et al.,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the SeCOnd CirCUit
`
`BRIEF OF AMICI CURIAE UNITED
`STATES REPRESENTATIVES IN
`SUPPORT OF PETITIONERS
`
`MIchael B. de leeuw
`Counsel of Record
`taMar S. wISe
`cozen o’Connor
`45 Broadway, 16th Floor
`New York, New York 10006
`(212) 908-1331
`mdeleeuw@cozen.com
`
`Counsel for Amici Curiae
`Representative Earl Blumenauer,
`Representative Tulsi Gabbard,
`Representative Jared Huffman,
`Representative Barbara Lee,
`Representative Alan Lowenthal,
`Representative Mark Pocan, and
`Representative Jamie Raskin
`
`298475
`
`
`
`In the
`Supreme Court of the United States
`
`MARVIN WASHINGTON, et al.,
`
`Petitioners,
`
`v.
`
`WILLIAM P. BARR, ATTORNEY GENERAL, et al.,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the SeCOnd CirCUit
`
`BRIEF OF AMICI CURIAE UNITED
`STATES REPRESENTATIVES IN
`SUPPORT OF PETITIONERS
`
`MIchael B. de leeuw
`Counsel of Record
`taMar S. wISe
`cozen o’Connor
`45 Broadway, 16th Floor
`New York, New York 10006
`(212) 908-1331
`mdeleeuw@cozen.com
`
`Counsel for Amici Curiae
`Representative Earl Blumenauer,
`Representative Tulsi Gabbard,
`Representative Jared Huffman,
`Representative Barbara Lee,
`Representative Alan Lowenthal,
`Representative Mark Pocan, and
`Representative Jamie Raskin
`
`298475
`
`
`
`
`
`TABLE OF CONTENTS
`
`INTERESTS OF AMICI CURIAE ........................... 1
`
`SUMMARY OF ARGUMENT .................................. 2
`
`A. Background on Schedule I of the Controlled
`Substances Act ............................................... 4
`
`B. Research Demonstrates That Medicinal
`Cannabis—Including Medical Marijuana—
`Has Legitimate Medicinal and Therapeutic
`Benefits .......................................................... 8
`
`C. Failure to Deschedule Cannabis Has Directly
`and Negatively Impacted American Citizens
`Throughout the Country ............................. 12
`
`REASONS FOR GRANTING THE WRIT ............. 15
`
`I.
`
`In Light Of Research Showing Medical
`Efficacy, Rigid Application Of Schedule I To
`All Uses Of Cannabis Presents Constitutional
`Concerns As Applied To Petitioners ........... 15
`
`II. The Potential For A Legislative Solution—
`While Theoretical—Does Not Alleviate This
`Court’s Obligation
`to Resolve
`the
`Constitutional Concerns Identified In The
`Petition ......................................................... 18
`
`CONCLUSION ....................................................... 22
`
`
`
`i
`
`
`
`
`
`
`
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Alliance for Cannabis Therapeutics v.
`Drug Enforcement Admin.,
`15 F.3d 1131 (1994) ........................................... 7
`
`Bostock v. Clayton County, Georgia,
`Nos. 17-1618, 17-1623, 140 S. Ct. 17310
`(June 15, 2020)................................................. 19
`
`CommCan, Inc. v. Baker,
`No. 2084CV00808-BLS2, 2020 WL 1903822
`(Mass. Sup. Ct. Apr. 16, 2020) ........................ 13
`
`Cruzan v. Missouri,
`497 U.S. 261 (1990 ..................................... 17, 18
`
`Grinspoon v. Drug Enforcement Admin.,
`828 F.2d 881, 886 (1st Cir. 1987) .............. 16, 17
`
`James v. City of Costa Mesa,
`700 F.3d 394 (9th Cir. 2012)............................ 14
`
`John Doe, Inc. v. Drug Enforcement Admin.,
`484 F.3d 561 (D.C. Cir. 2007) .......................... 17
`
`Rochin v. California,
`342 U.S. 165 (1952) .......................................... 18
`
`Union Pacific R. Co. v. Botsford,
`141 U.S. 250 11 S.Ct. 1000, 35 L.Ed.
`734 (1891) ......................................................... 18
`
`United States v. Windsor,
`574 U.S. 744 (2013) .......................................... 19
`
`
`
`
`ii
`
`
`
`
`
`U.S. v. Piaget,
`915 F.3d 138 ..................................................... 17
`
`Washington v. Sessions,
`No. 17-cv-5625-AKH (S.D.N.Y.) ...................... 21
`
`Winston v. Lee,
`470 U.S. 753 (1985) .......................................... 18
`
`
`
`Statutes and Other Authorities
`
`21 U.S.C. § 811(a) ..................................................... 5
`
`21 U.S.C. § 812(a) ............................................... 4, 15
`
`21 U.S.C. § 812(b) ..................................... 4, 7, 15, 17
`
`13 C.F.R. § 120.110(h) ............................................ 13
`
`28 C.F.R. § 0.100 ...................................................... 6
`
`42 U.S.C. § 12210(a) ............................................... 14
`
`42 U.S.C. § 12210(d) ............................................... 14
`
`84 Stat. 1236, 1280-81 .............................................. 6
`
`84 Stat. 1247 (21 U.S.C. § 812(b)(1)) ................... 4, 5
`
`84 Stat. at 1245-46. (21 U.S.C. § 811(a)) ................. 5
`
`Andrew Keiper, Disabled Iraq veteran faces five
`years in Alabama prison for legally prescribed
`medical marijuana, FOX NEWS, Aug. 3, 2020 .. 14
`
`
`
`
`iii
`
`
`
`
`
`Brief of Americans for Safe Access as Amicus
`Curiae in Support of Petitioners,
`at 6-7, Washington v. Barr, No. 20-148 .............. 8
`
`Cal. Health & Safety Code § 11362.5 .................... 11
`
`63 Okla. Stat. § 420 et seq. ..................................... 11
`
`Civil Rights Act of 1964, Title VII ......................... 19
`
`Colo. Dep’t of Pub. Health and Envn’t,
`Amended Public Health Order 20-24
`at III.C.4 (Mar. 25, 2020) .................................. 13
`
`Comprehensive Drug Abuse Prevention and
`Control Act of 1970, P.L. 91-114 84 Stat. 1236 .. 4
`
`Controlled Substances Act Schedule I ........... passim
`
`Controlled Substances Act Schedule II ................... 4
`
`Controlled Substances Act Schedule III .................. 4
`
`Controlled Substances Act Schedule IV .................. 4
`
`Controlled Substances Act Schedule V .................... 4
`
`Controlled Substances Therapeutic Research Act,
`N.M. Stat. § 26-2A-1 et seq. ................................ 9
`
`Denial of Petition to Initiate Proceedings to
`Reschedule Marijuana, No. DEA-427, 81 Fed.
`Reg. 53767 (Aug. 10, 2016) ................................. 7
`
`Department of Health, Education and Welfare,
`Fifth Annual Report to the U.S. Congress,
`Marihuana and Health at 112 (1975) ................ 9
`
`
`
`
`iv
`
`
`
`
`
`FDA and Cannabis: Research and Drug Approval
`Process, U.S. FOOD & DRUG ADMIN.
`(Aug. 3, 2020) .................................................... 11
`
`Federal Marijuana Prohibition Act
`of 2019, H.R. 1588 ............................................. 20
`
`In re Marijuana Rescheduling Petition,
`Opinion and Recommended Ruling,
`No. 86-22 (U.S.D.O.J. Sep’t 6, 1988)
`(Francis L. Young, ALJ) .................................... 10
`
`Homegrown Act of 2019, H.R. 3544 ....................... 20
`
`H.R. 499 (113th Congress) ..................................... 21
`
`H.R. 1227 (115th Congress) ................................... 21
`
`H.R. 1588 (116th Congress) ................................... 21
`
`H.R. 2306 (112th Congress) ................................... 21
`
`H.R. 3754 ................................................................ 20
`
`H.R. Rep. 91-1444 (1970) ......................................... 5
`
`H.R. Rep. 91-1444 (1970), Title II ............................ 4
`
`Journal of Pain Management,14:7-14 ..................... 9
`
`Marijuana 1-to-3 Act of 2019, H.R. 4324 ............... 20
`
`Marihuana: A Signal of Misunderstanding ......... 6, 9
`
`Marijuana Freedom and Opportunity Act, S. 1552
`& H.R. 2843 ....................................................... 20
`
`
`
`
`v
`
`
`
`
`
`Marijuana Justice Act of 2019,
`S. 597 & H.R. 1456 ............................................ 20
`
`Marijuana Opportunity Reinvestment and
`Expungement Act of 2019,
`H.R. 3884 & S.2227 ..................................... 20, 21
`
`Marijuana Revenue and Regulation Act, S. 420 &
`H.R. 1120 ........................................................... 20
`
`Miles Herkenham et al., Cannaboid receptor
`localization in the brain, PROCEEDINGS OF THE
`NAT’L ACAD. OF SCIS. (Mar. 1, 1990) ................. 10
`
`NATIONAL ACADEMIES OF SCIENCES, ENGINEERING,
`AND MEDICINE, THE HEALTH EFFECTS OF
`CANNABIS AND CANNABINOIDS, at 98-99, 116
`(Washington, DC: The National Academies
`Press 2017) ........................................................ 10
`
`Next Step Act of 2019, H.R. 1893 & S. 697 ........... 20
`
`Pa. Stat. § 10231.101 et seq .................................... 11
`
`President’s Reorganization Plan No. 2 of 1973, § 4,
`38 F.R. 15932, 87 Stat. 1091 ............................... 6
`
`Quinnipiac Univ., QU Poll Release Detail QU
`Poll (2018) ............................................................ 3
`
`Regulate Marijuana Like Alcohol Act, H.R. 420 ... 20
`
`Reorganization Act of 1949, 63 Stat. 203, as
`amended 85 Stat. 574 (1971) .............................. 6
`
`Rule 37.2.a ................................................................ 1
`
`
`
`
`vi
`
`
`
`
`
`S. 2237 (114th Congress) ....................................... 21
`
`SBA Policy Notice Re: Revised Guidance on Credit
`Elsewhere and Other Provisions in SOP 50 10
`5(J) (Apr. 3, 2018) at 1-2 (citing 13 C.F.R.
`§ 120.110(h), ...................................................... 13
`
`Substance Regulation and Safety Act of 2020,
`S. 4386 ............................................................... 20
`
`Teo Armus, A disabled black veteran drove
`through Alabama with medical marijuana.
`Now he faces five years in prison,
`WASH. POST, July 14, 2020............................ 9, 14
`
`Va. Code § 18.2-251.1 ......................................... 9, 14
`
`Veterans Medical Marijuana Safe Harbor Act,
`S. 445 & H.R. 1151 ............................................ 20
`
`In re Marijuana Rescheduling Petition,
`Opinion and Recommended Ruling, No. 86-22
`(U.S.D.O.J. Sep’t 6, 1988) ................................ 10
`
`
`
`
`vii
`
`
`
`INTERESTS OF AMICI CURIAE1
`
`Amici are seven United States Representatives
`who support the Petition asking this Court to find
`unconstitutional the rigid scheduling of cannabis,
`including medical cannabis, on Schedule I pursuant
`to the Controlled Substances Act, despite ample
`evidence that the qualifications for Schedule I
`classification are simply not met. Representative
`3rd
`Earl Blumenauer
`represents Oregon’s
`congressional
`district. Representative Tulsi
`Gabbard represents Hawaii’s 2nd congressional
`district. Representative Jared Huffman represents
`2nd
`California’s
`congressional
`district.
`Representative Barbara Lee represents California’s
`13th congressional district. Representative Alan
`Lowenthal epresents California’s 47th congressional
`district. Representative Mark Pocan represents
`Wisconsin’s 2nd
`congressional district. And
`Representative
`Jamie
`Raskin
`represents
`Maryland’s 8th congressional district.
`
`The Representatives are concerned that the
`current scheduling system under the CSA creates an
`unconstitutional framework that unfairly burdens
`their constituents. Specifically, the scheduling of
`cannabis—including
`medical
`cannabis—on
`Schedule I infringes on constituents’ Constitutional
`rights, including the right to seek life-saving medical
`care, the right to cross state lines with a medical
`
`
`1 This brief is filed pursuant to consent provided by all parties.
`No person other than amici and their counsel has authored this
`brief in whole or in part or made a monetary contribution
`toward its preparation or submission. By email dated
`September 1, 2020, counsel provided counsel of record for all
`parties the notice required by Rule 37.2.a.
`
`
`
`
`
`cannabis prescription valid in the originating state,
`and even the right to access vital government
`financial assistance during a pandemic despite
`operation of state-legal cannabis-related businesses.
`
`Amici are filing this brief to explain to this Court
`the extent to which the Second Circuit’s failure to
`engage in the constitutional analysis requested by
`the Petition impacts amici’s constituents, an impact
`that is far broader and more pervasive than the
`effect on Petitioners alone. Amici also wish to
`provide an explanation for why the Court should not
`wait for Congress to take action on descheduling
`cannabis. A potential legislative solution alone
`should not preempt this Court acting to resolve a
`constitutional concern. And in any event, decades of
`unsuccessful legislative action demonstrates that
`this politically rife issue is not likely to be resolved
`at the Congressional level in the near term.
`
`
`
`SUMMARY OF ARGUMENT
`
`Fifty years ago, the Controlled Substances Act
`(“CSA”) established schedules reflecting the danger
`of—and attendant regulation and criminality
`associated with—the drugs on those schedules.
`Marijuana was initially placed on Schedule I. But
`the text and legislative history of the statute make
`clear that the designation on any schedule was
`intended to be temporary and revisited regularly as
`science
`and medical
`research
`advanced.
`Unfortunately, as a result of complicated politics,
`cannabis has never been moved from Schedule I—
`despite ample research reflecting not only the
`safety—but also the medicinal benefits associated
`
`
`
`
`2
`
`
`
`
`
`with—certain types of cannabis. Moreover, the
`current rigid scheduling of medical cannabis is at
`odds with the viewpoints of the vast majority of
`Americans; a recent Quinnipiac poll demonstrates
`that 93% of Americans support the legalization of
`medical cannabis.2
`
`The continued classification of cannabis as a
`Schedule I drug
`is
`irrational.
` The Drug
`Enforcement Administration (“DEA”), the federal
`body charged with enforcing CSA schedules, has
`repeatedly denied rescheduling petitions. And at
`least two of the three Schedule I findings relied upon
`by DEA in denying those petitions, are contradicted
`by extensive research demonstrating the legitimate
`and safe medicinal uses of cannabis, including
`medical marijuana. DEA’s failure to follow the text
`and intent of the CSA as it relates to cannabis—
`especially medical cannabis that constitutes life-
`saving treatment for certain medical issues—has
`had a direct and far-reaching negative impact on
`American citizens—our constituents.
`
`In light of the fact that many states have legalized
`medicinal (and recreational) uses of cannabis, the
`continued rigid federal criminalization of any
`cannabis use creates a system that infringes on
`Constitutional rights—the right to interstate travel,
`to participate in civic life, to contract and engage in
`interstate commerce, to make life-saving and life-
`sustaining medical decisions without government
`
`
`2 Quinnipiac Univ., QU Poll Release Detail QU Poll (2018),
`https://poll.qu.edu/national/release-detail?ReleaseID=2539
`(last visited Sep 11, 2020).
`
`
`
`
`3
`
`
`
`
`
`intervention, and to make decisions guided by a
`clear, nationally-consistent regulatory scheme.
`
`This Court must take action to remedy the
`unconstitutional system that has unfairly burdened
`Petitioners and similarly-situated patients who
`lawfully use medical marijuana under
`the
`supervision of a physician and pursuant to state law.
`While a legislative solution is theoretically possible,
`various unsuccessful Congressional attempts to
`deschedule marijuana have made clear that
`legislative action is made practically impossible by
`complicated political realities. Because the current
`federal scheme violates federal law and infringes on
`Constitutional rights, the Court should grant
`certiorari to resolve this matter.
`
`
`
`A.
`
`Background on Schedule I of the
`Controlled Substances Act
`
`In the Comprehensive Drug Abuse Prevention and
`Control Act of 1970, P.L. 91-114, 84 Stat. 1236,
`Congress consolidated various drug laws into a
`single statutory scheme, provided for increased
`regulation to prevent illicit drug use, and expanded
`law enforcement tools for possession, distribution,
`and use of certain drugs. H.R. Rep. 91-1444 (1970).
`Title II of the Act, referred to and known as the
`Controlled Substances Act, established various drug
`schedules (Schedules I to V). 84 Stat. at 1427 (now
`codified at 21 U.S.C. 812(a)).
`
`Each schedule has its own criteria for inclusion,
`purportedly based on the risks of misuse for the
`drugs in question. 84 Stat. at 1247-48 (21 U.S.C.
`§ 812(b)). Specifically, Schedule I was reserved for
`
`
`
`
`4
`
`
`
`
`
`drugs with “a high potential for abuse,” “no currently
`accepted medical use in treatment in the United
`States,” and “a lack of accepted safety for use of the
`drug … under medical supervision.” 84 Stat. 1247
`(21 U.S.C. § 812(b)(1)).
`
`Placement of drugs on the schedules was intended
`to be fluid and subject to regular review and
`evaluation. The initial scheduling was done via
`statute, but the Attorney General was granted
`authority to shift drugs among the schedules or to
`de-schedule a drug. Indeed, the initial schedules
`were supposed to be updated every six months for
`the first two years following enactment and then
`“updated and republished on an annual basis”
`thereafter. 84 Stat. at 1247. The Attorney General
`was authorized to act on his or her own Motion, at
`the request of the Secretary for Health and Scientific
`Affairs, or on “the petition of any interested party.”
`84 Stat. at 1245-46. (21 U.S.C. § 811(a)).
`
`Marijuana was initially placed in Schedule I—but
`the statutory language and history make clear that
`its placement on that schedule was intended to be
`temporary. The Report accompanying the Act stated
`that the placement of marijuana was based on the
`recommendations of the Assistant Secretary for
`Health and Scientific Affairs, who advised that
`marijuana should be maintained in Schedule I “at
`least until the completion of certain studies now
`underway.” H.R. Rep. 91-1444 (1970) at 4579. That
`was fifty years ago! The Act also established a
`Commission on Marihuana and Drug Abuse (the
`“Commission”) to “conduct a study of marihuana,”
`including a study on the pharmacology of marihuana
`
`
`
`
`5
`
`
`
`
`
`and its immediate and long-term effects, both
`physiological and psychological.” 84 Stat. 1236,
`1280-81.
`That Commission’s
`first
`report
`unanimously recommended possession of marijuana
`for personal use should no longer be a criminal
`offense and that casual distribution of small
`amounts for no or insignificant remuneration not
`involving profit would no longer be an offense.
`Marihuana: A Signal of Misunderstanding at 191. In
`reporting the views of the medical community, the
`Commission notes that the “medical fraternity
`stresses the need for further research into health
`consequences.” Id. at 151.
`
`Three years after passage of the CSA, President
`Richard Nixon established the Drug Enforcement
`Administration (“DEA”) with the approval of
`Congress. President’s Reorganization Plan No. 2 of
`1973, § 4, 38 F.R. 15932, 87 Stat. 1091; see also
`Reorganization Act of 1949, 63 Stat. 203, as
`amended 85 Stat. 574 (1971) (granting presidential
`authority for reorganization). And since 1973, the
`Attorney General has delegated to the DEA the drug
`scheduling authority granted by the CSA along with
`other significant enforcement powers. 28 C.F.R. §
`0.100.
`
`Today, under the DEA’s authority, marijuana
`remains a Schedule I drug despite Congress’s
`direction to review and evaluate the schedules
`regularly (and make appropriate changes based on
`medical data); despite Congress’s
`temporary
`placement of marijuana on Schedule I (as made clear
`by the language of the CSA); and despite the new
`
`
`
`
`6
`
`
`
`
`
`consensus on safe and efficacious medicinal uses of
`cannabis.
`
`Even as medical and social views on marijuana in
`particular (and cannabis generally) have evolved,
`the DEA has rejected multiple rescheduling
`petitions, each of which took years or decades to
`resolve. The first petition, filed in 1972, received its
`first hearing in 1986 and was not fully resolved in
`court until 1994. See Alliance for Cannabis
`Therapeutics v. Drug Enforcement Admin., 15 F.3d
`1131, 1133 (1994). In another example from 2016,
`just one year before the commencement of this
`action, the DEA rejected a 2009 petition to
`reschedule marijuana and concluded that all three
`Schedule
`I requirements were met, despite
`overwhelming evidence to the contrary. Denial of
`Petition to Initiate Proceedings to Reschedule
`Marijuana, No. DEA-427, 81 Fed. Reg. 53767 (Aug.
`10, 2016). Relying on a report from the Department
`of Health and Human Services, the DEA concluded
`that there were no acceptable medical uses in
`treatment under Section 812(b) because “the drug's
`chemistry is not known and reproducible; there are
`no adequate safety studies; there are no adequate
`and well-controlled studies proving efficacy; the
`drug is not accepted by qualified experts; and the
`scientific evidence is not widely available.” Id. at
`53767. The DEA further ruled that there was no
`accepted safety for use under Section 812(b) because
`the Food and Drug Administration (“FDA”) had not
`approved any marijuana products and there was no
`accepted use in medical treatment with or without
`restrictions. Id.
`
`
`
`
`7
`
`
`
`
`
`Those decisions by the DEA are irrational, and the
`unusual events that gave rise to the peculiar federal
`scheme currently in place make a typical challenge
`to those agency determinations nearly impossible to
`mount. Indeed, as the Petition points out, the
`question of how an aggrieved citizen can even make
`any challenge to the agency determination is the
`subject of a circuit split that this Court should
`resolve, with some courts requiring aggrieved
`parties to raise constitutional challenges before the
`responsible government agencies first, while others
`do not impose such an exhaustion requirement
`where constitutional rights are implicated. Brief of
`Americans for Safe Access as Amicus Curiae in
`Support of Petitioners, at 6-7, Washington v. Barr,
`No. 20-148.
`
`Given the constitutional import of this matter to
`American citizens of all stripes, the Court should
`grant certiorari and review this case.
`
`Research Demonstrates That Medicinal
`B.
`Cannabis—Including Medical Marijuana—Has
`Legitimate Medicinal
`and Therapeutic
`Benefits
`
`to
`research
`further
`The CSA anticipated
`crystallize the proper scheduling of cannabis. The
`subsequent scientific evidence has made
`it
`abundantly clear that cannabis is a safe and
`effective treatment with bona fide medical benefits.
`
`Two years after passage of the CSA, medical
`experts offered a consensus opinion
`to
`the
`congressional committee studying the legalization
`and criminalization of marijuana: “more research”
`
`
`
`
`8
`
`
`
`
`
`of
` Marihuana: A Signal
`was needed.
`Misunderstanding at 151-52. At the time, “the
`systematic study of the clinical pharmacology of
`cannabis” was in its nascent stages, yet the potential
`for safe medical use was recognized almost
`immediately. Department of Health, Education and
`Welfare, Fifth Annual Report to the U.S. Congress,
`Marihuana and Health at 112 (1975) (the “1975
`HEW Report”) (modern research was “less than ten
`years old,” having been hampered by scientific
`limitations and federal regulation). Despite these
`limitations, the Department of Health, Education
`and Welfare found evidence of the possible medical
`use of cannabis for intraocular pressure reduction,
`anticonvulsant treatments for seizures, and cancer
`treatments. Id. at 112-115. A handful of states soon
`authorized
`trial programs
`involving medical
`cannabis.
` See,
`e.g., Controlled Substances
`Therapeutic Research Act, N.M. Stat. § 26-2A-1 et
`seq. (eff. 1978); Va. Code § 18.2-251.1 (allowing
`prescription for glaucoma) (eff. 1979).
`
`In 1985, the FDA approved a synthetic cannabis-
`related drug called dronabinol, which was shown to
`relieve nutritional complications suffered by
`patients with AIDS. Beal JE, et al. 1995; Beal JE,
`Olson R, Lefkowitz L, Laubenstein L, Bellman P,
`Yangco B, Morales JO, Murphy R, Powderly W,
`Plasse TF, Mosdell KW, Shepard KV. 1997. “Long-
`term efficiency and safety of dronabinol for acquired
`immunodeficiency
`syndrome-associated
`anorexia.” Journal of Pain Management 14:7-14. By
`1988, the growing evidence of state-sanctioned and
`surreptitious cannabis treatments—including the
`results
`of New Mexico’s program—led an
`
`
`
`
`9
`
`
`
`
`
`Administrative Law Judge to recognize three
`“accepted medical use[s] in treatment”: controlling
`the severe nausea and vomiting associated with
`chemotherapy; intraocular pressure reduction for
`relieving glaucoma; and treating the spasticity
`associated
`with
`
`multiple
`sclerosis,
`hyperparathyroidism, and other causes. In re
`Marijuana Rescheduling Petition, Opinion and
`Recommended Ruling, No. 86-22 (U.S.D.O.J. Sep’t 6,
`1988) (Francis L. Young, ALJ).
`
`The medical uses of cannabis are well supported by
`other research. See, e.g., Miles Herkenham et al.,
`Cannaboid receptor
`localization
`in the brain,
`PROCEEDINGS OF THE NAT’L ACAD. OF SCIS. (Mar. 1,
`1990). In 1999, existing data led the National
`Academy of Sciences to publish a consensus report
`recommending clinical
`trials on cannabinoid
`compounds for use in future drug development.
`Institute of Medicine. 1999. Marijuana and
`Medicine: Assessing the Science Base. Washington,
`DC: The National Academies Press. Research on
`existing and potential new uses of cannabis
`continues today. See, e.g., NATIONAL ACADEMIES OF
`SCIENCES, ENGINEERING, AND MEDICINE, THE
`HEALTH EFFECTS OF CANNABIS AND CANNABINOIDS,
`at 98-99, 116 (Washington, DC: The National
`Academies Press 2017) (cannabis as a treatment
`option for multiple sclerosis, and PTSD and chronic
`pain in military veterans).
`
`Indeed, in recognition of the medical utility of
`cannabis, the United States government itself has
`two patents on medical cannabis—U.S. Patent No.
`6,630,507 (issued Oct. 7, 2003) & Government of the
`
`
`
`
`10
`
`
`
`
`
`1. WO1999053917-
`United States Patent,
`Antioxidants
`and
`Cannabinoids
`As
`Patentscope,
`Neuroprotectants,
`https://patentscope.wipo.int/search/en/detail.jsf?doc
`Id=WO1999053917 (last visited Sept. 11, 2020).
`
`The medical consensus on safe therapeutic uses of
`cannabis
`led to an expansion of state
`laws
`permitting medical marijuana. Some of these laws
`were enacted by the people through referendums:
`e.g., California voters approved the first full-fledged
`medical marijuana program in the country in 1996,
`and Oklahoma voters approved its program in 2018.
`Cal. Health & Safety Code § 11362.5; 63 Okla. Stat.
`§ 420 et seq. Others were passed by state legislative
`bodies. See, e.g., Pa. Stat. § 10231.101 et seq. Today,
`thirty-three states (along with Washington, D.C.
`Puerto Rico, and
`certain
`territories) have
`comprehensive medical marijuana programs.
`Nearly all of the remaining states allow low-THC-
`content products or cannabidiol oil, and/or have
`pending legislation expand access to medicinal
`cannabis.
`
`The federal government has responded favorably
`to evidence of the medical benefits of cannabis even
`as marijuana remains a Schedule I drug. In addition
`to drobinol, the FDA approved cannabidiol (a
`cannabis-derived drug) and nabilone
`(another
`synthetic cannabis-related product), and the FDA’s
`compassionate use programs for cannabis drug
`development
`reflect
`support
`for
`“sound,
`scientifically-based research into the medicinal uses
`of drug products containing cannabis or cannabis-
`derived compounds.” FDA and Cannabis: Research
`
`
`
`
`11
`
`
`
`
`
`and Drug Approval Process, U.S. FOOD & DRUG
`ADMIN. (Aug. 3, 2020), https://www.fda.gov/news-
`events/public-health-focus/fda-and-cannabis-
`research-and-drug-approval-process (last accessed
`Sept. 10, 2020).
`
`Despite this research, the raft of evidence showing
`the medical benefits of marijuana for certain
`patients, and despite the clear statutory language of
`(and the intent behind) the CSA, Congress failed to
`enact the Commission’s original recommended
`course of action, and no Presidential administration
`or subsequent Congress has changed the placement
`of marijuana on Schedule I.
`
`C.
`
`Failure to Deschedule Cannabis Has
`Directly and Negatively
`Impacted
`American Citizens Throughout
`the
`Country
`
`While cannabis remains on Schedule I, the cost to
`American citizens—our constituents—has been
`tremendous and multifaceted. Blanket federal
`prohibition of cannabis continues to burden medical
`patients and market participants alike. This is
`particularly appalling in light of the glaring
`inconsistencies the Petition points out with respect
`to other federal policies including funding riders and
`non-enforcement policies by the Department of
`Justice. In addition to the individual plights
`described in the Petition and other amicus briefs, we
`want to focus on a few that demonstrate the manner
`in which American citizens have been harmed by the
`improper placement of cannabis on Schedule I.
`
`
`
`
`12
`
`
`
`
`
`The Cannabis Industry. Americans who are
`involved in state-legal cannabis-based businesses
`have been severely restricted in their ability to
`access capital and financing opportunities. Because
`cannabis is listed on Schedule I, most banks refuse
`to offer loans to cannabis-related enterprises for fear
`of finding themselves in violation of federal law.
`Most recently, cannabis businesses were denied
`relief under the Economic Injury Disaster Loan
`Program (offered by the Small Business Association
`to offset Covid-19 related business losses). SBA
`Policy Notice Re: Revised Guidance on Credit
`Elsewhere and Other Provisions in SOP 50 10 5(J)
`(Apr. 3, 2018) at 1-2 (citing 13 C.F.R. § 120.110(h),
`available
`at
`https://www.sba.gov/sites/default/files/resource_file
`s/SBA_Policy_Notice_5000-
`17057_Revised_Guidance_on_Credit_Elsewhere_an
`d_Other_Provisions.pdf; Colo. Dep’t of Pub. Health
`and Envn’t, Amended Public Health Order 20-24 at
`III.C.4 (Mar. 25, 2020) (defining “critical retail” to
`include “marijuana dispensary (only for the sale of
`medical marijuana or curbside delivery pursuant to
`an executive order). This limitation is particularly
`egregious give the fact that that many states
`designated certain cannabis-related businesses as
`“essential,” i.e., allowed to operate during many
`state’s lockdown periods. See, e.g., CommCan, Inc. v.
`Baker, No. 2084CV00808-BLS2, 2020 WL 1903822
`(Mass. Sup. Ct. Apr. 16, 2020).
`
`experienced
`have
`who
`Constituents
`discrimination—in the workplace or otherwise—as a
`result of their medical cannabis use have limited
`legal recourse. For example, because of the technical
`
`
`
`
`13
`
`
`
`
`
`designation many are unable to bring suit under the
`Americans with Disabilities Act to redress their
`harm. See, e.g., James v. City of Costa Mesa, 700
`F.3d 394, 397 (9th Cir. 2012) (“Congress has made
`clear, however, that the ADA defines ‘illegal drug
`use’ by reference to federal, rather than state, law,
`and federal law does not authorize the plaintiffs'
`medical marijuana use. We therefore necessarily
`conclude that the plaintiffs' medical marijuana use
`is not protected by the ADA.”); see also 42 U.S.C.
`§ 12210(a), § 12210(d) (excluding an individual
`currently engaging in illegal use of drugs from
`definition of “qualified individual with a disability”
`and specifying illegal use of drugs as use prohibited
`by the Controlled Substances Act).
`
`Veterans have been arrested for their use of
`medical cannabis, legally prescribed to address
`ailments that resulted from their service. For
`example, in 2016, Sean Worsley, a permanently
`disabled veteran who was honored with a Purple
`Heart after his service in Iraq, was arrested in
`Alabama for possession of medical cannabis. Mr.
`Worsley was on his way from Arizona—where he
`was legally prescribed the cannabis to treat PTSD—
`to North Carolina to assist his grandmother
`recovering from Hurricane Matthew. This 2016
`arrest led to a spiral of legal and financial burdens
`for Mr. Worsley that continue to this day. See Teo
`Armus, A disabled black veteran drove through
`Alabama with medical marijuana. Now he faces five
`years in prison, WASH. POST, July 14, 2020; Andrew
`Keiper, Disabled Iraq veteran faces five years in
`Alabama prison for legally prescribed medical
`marijuana, FOX NEWS, Aug. 3, 2020.
`
`
`
`
`14
`
`
`
`
`
`REASONS FOR GRANTING THE WRIT
`
`
`
`In Light Of Research Showing Medical
`I.
`Efficacy, Rigid Application Of Schedule I To
`All Uses Of Cannabis Presents Constitutional
`Concerns As Applied To Petitioners
`
`Classifying cannabis as a Schedule I drug is now
`clearly
`improper under
`federal
`law. Indeed,
`Congress made clear that “the findings required for
`such schedule” must be made “with respect to such
`drug or other substance.” 21 U.S.C. § 812(b). The
`medical consensus regarding the safe therapeutic
`uses of cannabis (including medical marijuana) is
`well developed in the relevant scientific literature,
`providing more
`than
`enough
`support
`for
`descheduling. Moreover, although the DEA could
`have granted one of the previously-filed petitions, it
`is permitted—and is in fact required—to initiate its
`own reviews and reconsider its position where
`appropriate by descheduling any drug which no
`longer satisfies the relevant criteria. See 21 U.S.C.
`§ 812(a) (re
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