Last summer I wrote about a ruling by the Second Circuit concerning a lawsuit filed by five persons challenging marijuana’s status as a schedule I drug under the Controlled Substances Act (“CSA”). The lawsuit asked the federal courts to rule that marijuana’s status as a schedule I drug is unconstitutional under the Due Process Clause of the Fifth Amendment, the Right to Travel, and the Commerce Clause.
Although the Second Circuit expressed considerable skepticism of the drug scheduling regime, the court held that before plaintiffs could seek relief in federal court, they must first file a de-scheduling petition with the DEA. The Second Circuit gave plaintiffs six months to file such petition, noting that a failure to do so would result in the court affirming the lower court’s dismissal of the case. In January 2020, the plaintiffs informed the court they did not intend file a petition and the case was dismissed.
As reported in Marijuana Moment, in July the plaintiffs filed a petition for a writ of certiorai with the Supreme Court challenging the Second Circuit’s ruling (the “Petition”). The Petition asks the Court to take up three questions:
Can Congress, consistent with the Due Process Clause of