“Attorney David Boies is known for taking cases that ‘have legs’—that is, the potential to be heard by the Supreme Court.”
By Christine Baily, C Bailey Law LLC
A case heading for oral argument in a federal appeals court on Thursday challenges the government’s authority to enforce the Controlled Substances Act’s (CSA) application to economic activity of licensees and registrants who are complying with state marijuana laws.
The U.S. Circuit Court of Appeals for the First Circuit is scheduled to hear oral argument in an appeal brought by the plaintiffs, owners of cannabis and cannabis-adjacent businesses operating in Massachusetts. The plaintiffs maintain that Congress lacks the authority to regulate their economic activity conducted in compliance with state marijuana laws.
Prior to this appeal, a federal district court judge granted the federal government’s motion to dismiss. The judge relied on the U.S. Supreme Court’s 2005 opinion, Gonzales v. Raich (Raich). In Raich, the Supreme Court held that local economic activity, including the cultivation of marijuana solely for personal use, had a substantial effect on interstate commerce. As such, Congress had the authority to regulate this activity.
While the judge acknowledged that circumstances have changed since that decision, including changes in views about marijuana, state regulation and federal enforcement, he was nevertheless bound by the Supreme Court’s holding in Raich. The plaintiffs appealed the lower court’s decision to the First Circuit.
At Thursday’s oral argument, the First Circuit likely will focus on whether the federal district court judge erred by relying on Raich and dismissing the plaintiffs’ complaint. Attorney David Boies of the law firm Boies Schiller Flexner LLP and his colleagues represent the plaintiffs. Boies is known for taking cases that “have legs”—that is, the potential to be heard by the Supreme Court.
On appeal, the plaintiffs argue that the lower court judge erred in the analysis of the Commerce Clause and ignored the Necessary and Proper Clause. They contend that the continued ban on marijuana is not necessary and proper to achieving Congress’s current goals under the CSA.
They demonstrate that since Raich was decided in 2005, the federal government has abandoned its goal to regulate interstate commerce of marijuana, citing evidence that Congress allows medical marijuana to be sold in Washington, D.C., and passes the Rohrabacher–Farr Amendment, which prohibits the Department of Justice from interfering with the states’ implementation of their medical marijuana laws. The plaintiffs maintain that as a result of these changes, Congress’s continued regulation of state legalized activity is unconstitutional.
The plaintiffs’ first objective before the First Circuit is to overturn the lower court’s decision to dismiss their complaint. However, this is not their only objective.
Neither the plaintiffs nor court-watchers expect to be surprised if the First Circuit affirms the lower court’s dismissal. For that reason, the plaintiffs have another objective: that the First Circuit issue a decision that will attract the attention of and ultimately, a review by, the U.S. Supreme Court.
For these reasons, both parties will also be directing their arguments beyond the courtroom to the higher court.
This case matters to the extent that it will have important implications for how the federal government responds to state legalization.
If the First Circuit reverses the lower court’s decision, it could set a precedent that limits Congress’s authority to regulate state-legalized marijuana activity under the CSA. However, if the panel affirms the federal district court’s decision, it could strengthen the federal government’s ability to enforce the CSA.
Regardless of the outcome, this case is worth watching given its potential impact on the future of cannabis policy across the United States.
Christine Baily focuses on providing personalized legal advice to businesses and individuals operating in regulated industries. As the first general counsel of the Massachusetts Cannabis Control Commission, she played a critical role in shaping the state’s cannabis industry. Today, Christine manages her own firm, C Baily Law LLC, where she helps clients obtain government approvals, ensure compliance with regulatory requirements, defend against investigations and disciplinary actions and challenge governmental actions in federal and state courts. She is licensed to practice law in Maine, Massachusetts and Connecticut. She can be reached at [email protected] or through LinkedIn.
This article is for informational purposes only and does not constitute legal advice. The information provided is not intended to replace professional legal counsel. Please consult with an attorney to discuss your specific legal needs and circumstances.