Although nominee Brett Kavanaugh’s resume doesn’t include cannabis decisions, his potential confirmation will sway the Supreme Court into dubious territory for the industry.
President Trump has nominated Brett Kavanaugh for the Supreme Court, leaving the cannabis industry wondering how he may impact federal marijuana policy—if at all—should he be approved by Congress.
“I am unaware of any court decision or public statement made by Kavanaugh that would clarify his position on marijuana legalization,” NORML founder Keith Stroup told Cannabis Business Times. “But considering his conservative legal views, it is unlikely that he would find the federal marijuana laws to be unconstitutional.”
“As a Conservative justice, we hope Judge Kavanaugh would be supportive of states’ rights, in turn supporting legal cannabis companies in these markets, and allowing continuation of emerging legal cannabis markets state to state until Congress steps up to change federal law,” said Robert Fireman, CEO of MariMed, a cannabis consulting company.
“The Supreme Court is generally the final interpreter of the constitution,” added Ray Schiavone, CEO and co-founder of Nevada-based cultivator Tahoe Hydroponics. “I think fundamentally, President Trump’s nomination of Brett Kavanaugh was an excellent decision in that regard. What remains to be seen are rulings from Kavanaugh on cannabis related issues.”
Kavanaugh may be an unknown, but a more conservative Supreme Court—one that would be locked in with a 5-4 tilt toward classically right-wing ideologies—may pose an obstacle for any potential cannabis cases that may land in the court. For now, speculation runs the gamut from outright concern to bemusemen
“On paper, Brett Kavanaugh’s nomination doesn’t seem to be good news for our industry, although it might influence and help unlock the federal status of cannabis,” said Arnaud Dumas de Rauly, co-CEO of The Blinc Group, a cannabis business incubator. “He has, in the past, sided with the FDA—which we believe will have an oversight mandate on marijuana once it gets off Schedule I—and made sure that the agency’s processes are respected. On the other hand, if and when the FDA gains oversight on federal regulation of cannabis, he could be pivotal with regards to implementing and policing a sensible regulatory scheme. Short answer: negative short-term influence, but a potential positive impact long-term.”
“I don’t know how much it’s going to mean to the cannabis industry,” added Adam Fayne, co-chair of the cannabis law practice at Saul Ewing. “As we all know, the issue with the cannabis industry is the scheduling of cannabis as a Schedule I controlled substance, and that’s not typically a court issue, a judge issue—it’s a statutory issue that Congress has to fix.”
However, with the Food and Drug Administration’s (FDA) recent approval of GW Pharmaceutical’s cannabis-based drug Epidiolex, the organization is admitting that cannabis has medicinal value, which contradicts its classification as a Schedule I substance under the U.S. Controlled Substances Act (CSA), Fayne said. This may give the Supreme Court reason to challenge cannabis’s Schedule I status.
“Historically, there wasn’t really any grounds to challenge the Controlled Substances Act in classifying cannabis as Schedule I because it has no medicinal value, but now they’re at odds—they don’t reconcile,” Fayne said. “How can the FDA on one hand say that cannabis has no medicinal value, but then on the other hand, it approves a cannabis-based drug based on its medicinal value? That could be potentially an issue that the courts could get involved with.”
Kavanaugh has urged judges to defer to the FDA and other scientific agencies in their rulings, STAT News reported. He also sided with the FDA in a 2007 case over whether the agency should be forced to provide patients access to an unapproved drug, per STAT News.
“My hope is that with cannabis being legal in the District of Columbia, he has become more open minded than back in 2007 when he ruled that terminally ill patients have no right to access unapproved drugs,” Schiavone said.
In 2013, Kavanaugh sided with the FDA again in a case against a medical device manufacturer, STAT News also reported. “A court is ill-equipped to second-guess that kind of agency scientific judgment,” Kavanaugh wrote.
“He was deferring to the FDA generally, so on one hand, he would probably respect the FDA’s classification of cannabis as a Schedule I drug and be hesitant to remove it from there, but on the other hand, he could look at the FDA’s recent approve of GW and realize that there’s disconnect there, and the FDA is spealing out of both sides of [its] mouth, and there might be some sort of judicial recourse that the judge may be inclined to clarify for the country,” Fayne said.
Whether the Supreme Court clarifies the legality of a substance like CBD alone (which is similarly and specifically also a Schedule-I substance), many industry observers have thrown their weight behind challenging prohibition in a legislative capacity. Groups like Stroup’s NORML have endorsed pro-cannabis candidates and pushed for reform in state legislatures across the U.S. Their goal—their focus—isn’t necessarily on court decisions.
“The Supreme Court, with or without Justice Kavanaugh, is not going to bail us out of marijuana prohibition; we are going to have to amend federal law via Congress,” Stroup said. “And while we continue to increase our support in Congress, we do not yet have sufficient support to end federal prohibition.”
Washington v. Sessions
Perhaps the clearest route to the Supreme Court may lie in Washington v. Sessions, the lawsuit against U.S. Attorney General Jeff Sessions and the DEA that’s presently being litigated in the U.S. Court of Appeals for the Second Circuit. That lawsuit, helmed by three medical marijuana patients, including 12-year-old Alexis Bortell and former Denver Bronco Marvin Washington, seeks to reschedule cannabis in order to allow American patients unfettered access to the drug.
Earlier this year, federal judge Alvin Hellerstein flagged the case for an “expedited” trial. (He later dismissed the lawsuit, which is how it has landed in appeals court.)
Attorney Michael Hiller of Hiller, PC, which represents Washington, Bortell and the other plaintiffs, told Cannabis Business Times that the briefs are being filed in the Second Circuit now.
In the event that Washington v. Sessions were to end up in the Supreme Court, Hiller said he’s optimistic that judges on both sides of the ideological balance beam could find reasons to remove cannabis from the list of Schedule-I substances.
“From our perspective, the composition of the court isn’t a critical issue,” Hiller said. Prior to any Senate confirmation, the Court is holding fast at an even 4-4 split on ideological grounds. The left side of the court, Hiller pointed out, has traditionally taken a progressive stance on civil rights and due process issues, much like when Justice Ruth Bader Ginsberg penned a dissenting opinion in a case pertaining to developmental drug access.
“On the right—and right now, there are four justices on the right…—they may not be as sympathetic,” Hiller said. “I’m not sure about that. I’m not sure about how they would regard the right to use or treat with medical cannabis. But I do know that they are sensitive to the expansion of Congressional power under the Commerce Clause.”
That clause of the U.S. Constitution relegates federal commerce regulation to the transfer of goods and services across state lines (or use of instruments, like boats and trains, across state lines). Because cannabis is regulated state-by-state—and not sold across state lines—this clause would not permit Congress to influence or oversee the cannabis trade. It’s a matter of the industry being out of bounds for federal control.
“The state programs from which each of the plaintiffs—other than Mr. Washington, who does not treat with cannabis—the state programs are entirely insular. They’re self-contained programs,” Hiller said. “I don’t think [Kavanaugh] has really staked out a position one way or the other [on this clause], but … certainly his opinions suggest that he recognizes that the Commerce Clause was not intended to be all-encompassing.”
So, what might the Supreme Court do in the event it takes up a case like Washington v. Sessions?
“I believe that what is likely to happen is that the right side of the Court may very well determine that Congress overstepped its bounds in classifying a medication that is used solely within single states,” Hiller said. “So, on the right, you’re looking at the possibility that the Court will determine that Congress should never have legislated the issue of cannabis in states in which there are no programs that go beyond state lines. And you have the left side of the Court, saying, ‘I’m not getting into the commerce issue, but from a civil rights perspective, from a due process perspective, people should have access to medication.’
“It’s entirely possible that the Supreme Court could provide a unanimous verdict, but on different grounds,” Hiller says.
At any rate, it is now up to the U.S. Senate whether to approve Kavanaugh as a Supreme Court Justice. (Currently, the Senate is held by a majority of Republican members, 51-47.)
“It’s incumbent on Congress to determine whether Kavanaugh’s legal views are compatible with the powerful role he will play for generations,” the ACLU said in a public statement. “If confirmed, Kavanaugh could very well be the decisive vote Trump needs in the Supreme Court to give his concerted campaign to undermine civil liberties and civil rights long-term impact.”
“Justice Kennedy kept the court in the mainstream by having an open mind and a commitment to an evolving Constitution,” the ACLU added. “Senators should ask Kavanaugh whether he agrees that constitutional law evolves with the times, as it did in recognizing that segregation is unconstitutional, that sex discrimination violates the Equal Protection Clause, and that marriage equality is constitutionally guaranteed.”
Either way, cannabis advocates continue the long and arduous journey toward policy reform, Stroup said. “We continue to make substantial progress toward ending marijuana prohibition at the state level, and the likely addition of Kavanaugh to the U.S. Supreme Court should have no impact on that trend.”
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