That ruling contributed to an emerging split between state courts on the issue. The Maine Supreme Court had decided a case in that state along similar lines, while supreme courts in both New Hampshire and New Jersey have ruled that reimbursements to medical marijuana patients can go forward regardless of federal prohibition.<\/p>\n
Susan Musta, the patient in the Minnesota case, filed a brief last month asking the U.S. Supreme Court to take up the case<\/a>.<\/p>\n \u201cCourts have been bedeviled with difficult questions regarding how to apply state marijuana laws in the shadow of the federal prohibition on marijuana,\u201d her appeal states. \u201cAs more and more states legalize and regulate medical and recreational marijuana, cases raising these questions will multiply. This Court\u2019s guidance on this important issue is urgently needed.\u201d<\/p>\n While neither Empire State NORML nor the two industry groups are party to the suit itself, their amicus brief encourages justices to reconsider the state court\u2019s ruling and settle the inconsistency between states.<\/p>\n \u201cThe U.S. Supreme Court\u2019s job is to tell when there\u2019s a split between the highest courts in two states or more,\u201d said David C. Holland, a New York attorney and the executive director of Empire State NORML. Holland, who filed the new brief, is also co-founder of the New York City Cannabis Industry Association and the Hudson Valley Cannabis Industry Association.<\/p>\n Generally Holland\u2019s brief argues that although the letter of the CSA is clear\u2014cannabis is a prohibited drug of the most restricted class\u2014permissive actions by the federal government in recent decades have made it virtually impossible for states or medical marijuana patients to know what\u2019s actually allowed.<\/p>\n \u201cNobody wants to enforce it anymore, but nobody wants to rewrite it,\u201d Holland told Marijuana Moment in an interview. \u201cThere\u2019s no longer a good faith basis to let it continue to be enforced.\u201d<\/p>\n States shouldn\u2019t have to settle such a fundamental constitutional questions themselves, his brief says. Failure by the federal government to squarely address the conflict, however, has led to a situation in which most states have passed some form of cannabis legalization despite an almost-categorical ban at the federal level.<\/p>\n \u201cThe vast majority of states have found cannabis to be an effective medicine and passed legislation to that effect in direct contravention of the CSA,\u201d the brief says. \u201cIt seems fundamentally unfair to place the onus on State Supreme Courts to have to make determinations about the applicability of federal preemption and determine the existence of a \u2018positive conflict\u2019 when the U.S. attorney generals [sic] have refused to do [so] for the past 25 years.\u201d<\/p>\n Holland made similar arguments in a separate amicus brief to the Supreme Court last year<\/a> in a different case.<\/p>\n While federal agencies often claim that the CSA broadly prohibits cannabis activity, Holland\u2019s brief highlights examples of where the government has made sweeping exceptions.<\/p>\n A series of Department of Justice memos under President Barack Obama, for example, advised federal prosecutors not to spend their limited resources to disrupt legal state marijuana programs or target individual patients. Congress has also passed spending restrictions and other measures over the years that effectively allowed state-level legalization of medical cannabis to move forward.<\/p>\n The Trump administration further muddied the waters. Early on, Jeff Sessions, the former president\u2019s first AG and an outspoken critic of cannabis use, rescinded the so-called Cole memo, a Justice Department guidance document advising federal prosecutors not to target state-legal cannabis systems. But Sessions\u2019s successor, Attorney General Bill Barr, promptly pivoted.<\/p>\n \u201cI\u2019m not going to go after companies that have relied on the Cole memorandum,\u201d he said at his confirmation hearings<\/a>, saying it was \u201cimportant not to upset the interests and expectations of the businesses and investors who have entered the legal marijuana industry.\u201d<\/p>\n Barr called the situation \u201cuntenable,\u201d describing it as \u201calmost like a backdoor nullification of federal law.<\/p>\n U.S. Supreme Court Justice Clarence Thomas also recently took issue with the government\u2019s inconsistent stance on cannabis. In a statement issued in June, after the court declined to take up a tax case centered on cannabis, Thomas criticized the government\u2019s approach as \u201ccontradictory\u201d and \u201cunstable.\u201d<\/a><\/p>\n \u201cOnce comprehensive, the Federal Government\u2019s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,\u201d he wrote.<\/p>\n \u201cWhatever the merits of Raich<\/em> when it was first decided, federal policies of the past 16 years have greatly undermined its reasoning,\u201d Thomas continued, referring to a 2005 Supreme Court ruling, Gonzales v. Raich<\/em>, where the court ruled the federal government could prohibit state-level cannabis activity irrespective of state law. \u201cThough federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana \u2026 the Government, post-Raich, has sent mixed signals on its views.\u201d<\/p>\n Thomas wrote that the situation \u201cstrains basic principles of federalism and conceals traps for the unwary.\u201d<\/p>\n \u201cGiven all these developments,\u201d he said, \u201cone can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.<\/p>\n In light of the federal government\u2019s ambiguous approach, Holland\u2019s brief contends that the cannabis\u2019s Schedule I designation under the CSA should be done away with completely as a matter of fundamental fairness.<\/p>\n \u201cThe festering supremacy and nullification legal carbuncle continues to infect American jurisprudence with regard to the Schedule I designation of cannabis,\u201d the brief concludes. \u201cIt must be eradicated to end this constitutional crisis. The need for supremacy of all rational federal laws, Due Process, and notions of fairness all should compel this Court to invoke the Doctrine of Estoppel to cure this problem once and for all.\u201d<\/p>\n Mendota Heights Dental Center is due to file its response to Musta\u2019s request for the Supreme Court to take up the case on January 14. After that time, the justices will decide whether to hear the appeal.<\/p>\n IRS Official Gives Marijuana Businesses Advice On Tax Compliance<\/a><\/p>\n<\/blockquote>\n Photo elements courtesy of rawpixel<\/a> and Philip Steffan<\/a>.<\/em><\/p>\n\n
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