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Marijuana companies seeking to shield their in-state activities from federal enforcement are asking a judge to schedule oral arguments in order to respond to arguments the Justice Department made in a recent briefing in the case—including its position that cannabis legalization attracts out-of-state tourism, empowering it to uphold prohibition under the Constitution.
The marijuana corporations submitted the request for oral arguments with the U.S. District Court for the District of Massachusetts, Western Division on Friday. This comes about a week after DOJ filed a motion to dismiss the suit with the court.
The underlying suit against the federal government is being led by multi-state operator Verano Holdings Corp. and the Massachusetts-based cannabis businesses Canna Provisions and Wiseacre Farm, along with Treevit CEO Gyasi Sellers. They’re represented by the law firms Boies Schiller and Flexner LLP and Lesser, Newman, Aleo and Nasser LLP.
“The case presents multiple constitutional questions and concerns matters of great importance both in the Commonwealth and nationwide,” the law firm representing industry stakeholders said. “Oral argument will allow for a meaningful review of these issues.”
Litigator David Boies—whose list of prior clients includes the Justice Department, former Vice President Al Gore and plaintiffs in the case that led to the invalidation of California’s ban on same-sex marriage—is leading the suit.
He said in the new one-page letter to Judge Mark G. Mastroianni that oral arguments “would be particularly useful for addressing points raised for the first time in Defendant’s reply brief, including whether the Controlled Substances Act’s (CSA) bar on intrastate marijuana can be upheld as an attempt to regulate ‘”marijuana tourism.’”
Lawyers for the Justice Department said the government “takes no position on the request for oral argument” in a statement included in the request.
“It is a matter of the Court’s discretion whether to hold oral argument,” it said. “If the Court elects to hold oral argument, Defendant will be ready to present argument.”
Part of DOJ’s argument in its filing earlier this month is that it claims “it is rational to conclude that the regulated marijuana industry in Massachusetts fuels a different kind of marijuana-related interstate commerce: marijuana tourism.”
“That is especially so because Massachusetts marijuana businesses gross hundreds of millions of dollars in sales each year, and dispensaries such as Canna Provisions cater to out-of-state customers,” it states.
In other words, while the plaintiffs’ claim is that the Constitution’s Commerce Clause should preclude DOJ from interfering in state-legal activity because it is centrally regulated within a state’s borders, legalization attracts cannabis tourism from people from states without legal programs who would prefer to buy from regulated storefronts.
“As the Supreme Court held decades ago, Congress has the authority to regulate businesses that cater to tourists from out of state, even if the businesses’ transactions occur wholly in-state,” DOJ said in the filing.
This all comes in the background of a Drug Enforcement Administration (DEA) review into marijuana scheduling under the CSA. The U.S. Department of Health and Human Services (HHS) has recommended moving cannabis from Schedule I to Schedule III.
And while the Biden administration has maintained that people should not be criminalized over possession or use of marijuana, DOJ has continued to fight reform efforts in courts, including this current case on broad prohibition, as well as litigation challenging the ban on cannabis consumers’ gun rights.
Read the request for oral hearings in the marijuana lawsuit below:
Photo elements courtesy of rawpixel and Philip Steffan.
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