A federal lawsuit brought by several marijuana companies hoping to overturn cannabis prohibition through the courts is back in play.

Green Market Report reported that the original lawsuit was filed in October last year by Chicago-based multistate operator Verano Holdings Corp. (OTC: VRNOF), along with Massachusetts-based Canna Provisions, Wiseacre Farm, and entrepreneur Gyasi Sellers using the well-known legal firm of Boies Schiller Flexner LLP. It was dismissed on July 1, 2024. But the legal team at the time said that was always part of the long-term plan.

The dismissal claimed that the plaintiffs in the case had not yet proven that there exists a “fundamental right” under the U.S. Constitution to cultivate cannabis, but rather that such a right is a question still under the purview of Congress. It also found that the growth of the national marijuana market, and the opt-in of dozens of states to legal cannabis, does not reach the level of a constitutional right.

At the time Schiller said, “We’re now onto the appellate stage of this litigation, which is what we always expected, one way or another,” noting that even if the cannabis companies had won, the DOJ would have certainly appealed.

On to the First Circuit

This week, the legal team filed that brief with the First Circuit appellate court. The brief stated, “This appeal presents multiple constitutional questions, including the proper standard for assessing Congress’s authority to regulate local commerce under the Commerce Clause and Necessary and Proper Clause. The issues at stake in this appeal include matters of importance both in the Commonwealth of Massachusetts and nationwide.”

The brief acknowledged the dismissal saying that the district court held that modern legalization trends were irrelevant under Dobbs. Still, Dobbs instructs courts to ignore modern practices when they are inconsistent with historical analysis. They noted in the brief that marijuana is a flowering plant that has been cultivated, distributed, sold, and used in the United States since at least 1619. Each of the Thirteen Colonies enacted legislation to protect or promote commerce in marijuana (then known as hemp).

Supreme Court next

In July, the legal team said that after this step with the First Circuit, it expected to petition the U.S. Supreme Court to be heard. Though it’s still uncertain whether the Supreme Court will even agree to take the case, Schiller said he thought three of the court’s conservatives were leaning towards wanting to weigh in. If that happens, “there could be a decision next summer. The latest I would think would be the following summer,” Schiller said.

Schiller also said a separate recent Supreme Court ruling, which overturned the longstanding Chevron precedent, might mean that the Biden administration’s attempt to reclassify marijuana as a Schedule III substance may also now be in peril.

“Along with Chevron, I think rescheduling is gone,” Schiller said.

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A federal lawsuit brought by several marijuana companies hoping to overturn cannabis prohibition through the courts was dismissed on Monday, but that was always part of the long-term plan by the high-profile attorney team behind it, who say they still expect to be heard by the U.S. Supreme Court sometime in the next two years.

The lawsuit was filed in October last year by Chicago-based multistate operator Verano Holdings Corp., along with Massachusetts-based Canna Provisions, Wiseacre Farm, and entrepreneur Gyasi Sellers, all of whom argued that the Department of Justice’s Schedule I classification of marijuana under the U.S. Controlled Substances Act’s is unconstitutional given the national cannabis market that has developed in the past two decades.

The DOJ moved to dismiss the case in January, oral arguments were held in May, and this week, U.S. District Court Judge Mark Mastroianni sided with the government.

Raich remains law of the land

Mastroianni found that the plaintiffs in the case had not yet proven that there exists a “fundamental right” under the U.S. Constitution to cultivate cannabis, but rather that such a right is a question still under the purview of Congress.

Mastroianni also found that the growth of the national marijuana market, and the opt-in of dozens of states to legal cannabis, does not reach the level of a constitutional right.

Therefore, he ruled that a 2005 Supreme Court precedent case, Gonzales v. Raich, is still the controlling law of the land, which upheld federal marijuana prohibition and barriers to legal interstate cannabis commerce.

“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.

“Only the Supreme Court can overrule Raich,” Mastroianni wrote. “Although many more states have since legalized marijuana, for both medical purposes and adult use, there is still no national consensus on this issue. 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.”

Up next: appeals

This ruling is only one of many steps in a lengthy process, said attorney Josh Schiller, one of the lead lawyers representing the plaintiffs in the case.

“We’re now onto the appellate stage of this litigation, which is what we always expected, one way or another,” Schiller said, noting that even if the cannabis companies had won, the DOJ would have certainly appealed.

The next stop, Schiller said, is the First Circuit Court of Appeals in Boston, after which his team expects to petition the U.S. Supreme Court to be heard. Though it’s still uncertain whether the Supreme Court will even agree to take the case, Schiller said he thinks three of the court’s conservatives are leaning towards wanting to weigh in. If that happens, “there could be a decision next summer. The latest I would think would be the following summer,” Schiller said.

Schiller also said a separate recent Supreme Court ruling, in Chevron v. Natural Resources Defense Council, might mean that the Biden administration’s attempt to reclassify marijuana as a Schedule III substance may also now be in peril.

“Along with Chevron, I think rescheduling is gone. I think it’ll be canceled. I think there’s a likelihood of that happening, and that makes our case even more important,” Schiller said.

Boies ruling on motion to dismiss