Lawsuit Takes Aim At Trump Administration Marijuana Policy

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Photo Credit: David Zalubowski

Besieged by litigation about its travel ban, its immigration agenda, its prohibition on transgender soldiers and numerous potential conflicts of interest, the presidency of Donald J. Trump has seemed at times like a high-stakes spinoff of “The People’s Court” with Mr. Trump in the starring role as defendant in chief.

On Wednesday, yet another courtroom battle promises to pull the White House into the legal spotlight as crucial arguments are heard in New York in a sweeping lawsuit that is challenging the administration’s marijuana policy by seeking to legalize pot under federal law.

When the suit was filed in Federal District Court in Manhattan in July, it appeared to be an intriguing, if limited, effort to help its five named plaintiffs — among them a former professional football player with a business selling pot-based pain relievers and a 12-year-old girl who treats her chronic epilepsy with medical marijuana. But the case was thrust into national relevance last month when Attorney General Jeff Sessions issued an order encouraging prosecutors to aggressively enforce the federal marijuana law, endangering the viability of the multibillion-dollar weed industry in states where it is legal.

In its 98-page complaint, the suit presents its case for legalization not only through a host of constitutional arguments, but also by way of a world-historical tour of marijuana use — from its first purported role 10,000 years ago in the production of Taiwanese pottery to the smoking habits of President Barack Obama in his younger days. It points out that the ancient Egyptians used the drug to treat eye sores and hemorrhoids, and Thomas Jefferson puffed it for his migraines. James Madison credited “sweet hemp” for giving him “insight to create a new and democratic nation,” the suit notes.

The suit also includes archival material quoting John Ehrlichman, an adviser to President Richard Nixon, saying that the early efforts to criminalize pot were a way to disrupt the hippies and the black community after the 1960s. The contention is bolstered by an affidavit from Roger J. Stone, Jr., a pro-pot Nixon-era operative and adviser to Mr. Trump.

This is not the first time lawyers have sought to use the courts to question whether marijuana should still be classified as a so-called Schedule 1 drug under the 1970 Controlled Substances Act, the most restrictive category reserved for the most dangerous narcotics. Many of those efforts have come in criminal cases, and judges — including those on the United States Supreme Court — have routinely upheld Congress’s decision to make marijuana illegal.

The current legal action is a somewhat rare attempt to use civil claims to legalize weed and has offered some novel arguments as to why its classification has violated the constitutional rights of those who filed the suit.

The former football player, Marvin Washington, for instance, is contending that the Controlled Substances Act has impeded his ability to transact business in states where pot is legal in contravention of the Constitution’s commerce clause. The girl with epilepsy, Alexis Bortell, has argued that the law illegally restricts her right to travel with her medicine in states where pot is not allowed or to places controlled by the federal government — including on airplanes. A third plaintiff, the Cannabis Cultural Association, a nonprofit group created to assist minorities in the marijuana industry, has alleged the law has been used for years to discriminate against them.

“It’s the first time a young child who needs lifesaving medicine has stood up to the government to be able to use it,” said Joseph A. Bondy, one of the lawyers who brought the suit. “It’s the first time that a group of young millennials of color has stood up to the government and said the marijuana law is wrong and has destroyed their communities.”

The suit has made another claim based on what amounts to government hypocrisy: It asks why the government has classified pot as a pernicious substance, when in 2003 the Department of Health and Human Services obtained a patent on compounds in the drug to protect against brain damage and then in 2015 the surgeon general under President Obama declared in public that pot has medical benefits.

Against these claims, lawyers for the government have argued that Congress decided nearly 50 years ago that pot should be a Schedule 1 drug, and if the plaintiffs don’t agree, they should try to change the law. Their suit, the lawyers wrote in one of their filings, “is the latest in a long list of cases asserting constitutional challenges to marijuana regulation under the C.S.A. Those challenges have been uniformly rejected by the federal courts.”

No matter how the lawsuit ends, the judge who is considering the case, Alvin K. Hellerstein, is clearly taking it seriously. At a hearing in September, Judge Hellerstein said he would give the matter his “prioritized attention,” setting it ahead of all of his other cases.

The hearing on Wednesday, scheduled to entertain arguments to dismiss the case, is very likely to be marked by a whiff of drama as marijuana activists from across the country are expected to descend on the courtroom. Mr. Bondy said he was also trying to arrange a live-stream of the proceeding so that Alexis, unable to travel to New York, can watch it from her home in Colorado.

It is not coincidental that the suit was filed at a moment when 30 states have laws legalizing pot in various capacities, spawning a giant industry of growers, distributors and producers of paraphernalia. When Mr. Sessions announced on Jan. 4 that he was rescinding an Obama-era policy that took a laissez-faire approach to the marijuana business in states where it is legal, it was not just the lawyers working on the lawsuit who complained; lawmakers from both political parties — some from conservative states — leveled accusations of betrayal and howled with dismay.

“We might not have been able to do this 10 or 15 years ago,” Mr. Bondy said. “But the climate is very different now.”

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