The ‘CannaBoies’ Lawsuit and Why it Matters
On October 26, 2023, a group of large cannabis companies based in Massachusetts filed suit in the U.S. District Court for the Western District of Massachusetts against Merrick Garland, our current U.S. attorney general, alleging that, while Congress has the constitutional power to ban cannabis from interstate commerce, the Controlled Substances Act (CSA) exceeds that power by overreaching to ban cannabis from purely intrastate commerce. Essentially, neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution give Congress a “general police power” to take over regulation of strictly intrastate commerce. Plaintiffs’ counsel in this case is renowned civil rights trial firm Boies Schiller Flexner, LLP, and Joshua Schiller is one of the litigators leading the charge.
To overcome negative precedent in this area, plaintiffs argue that highly regulated state markets actually reduce interstate cannabis commerce (meaning, heavy state government oversight reduces illicit interstate transactions) and that cannabis isn’t fungible anymore—state-legal products (that are tracked, traced, packaged, labeled, and tested in line with strict state rules) are easily distinguishable from illegal ones. They also argue that Congress long ago abandoned its alleged goal of banning cannabis intrastate for the sake of keeping it out of interstate commerce, using as examples the continually renewed federal spending bills in support of state-legal medical cannabis, the fact that D.C. allows for medical cannabis, and the multiple (now rescinded) Department of Justice memos that essentially let the states take over intrastate cannabis control anyway.
In this episode, Husch Blackwell's Hilary Bricken and Joshua Schiller of Boies Schiller Flexner takes listeners through the intricate in’s and out’s of this potentially landmark lawsuit, why it matters now more than ever for the fate of the cannabis industry, and how Josh believes the federal government will handle the case (while potentially getting in front of the Supreme Court on appeal).