Can Suing the U.S. Attorney General Make Medical Marijuana Legal?

Just a small morning and evening dose of THC oil has allowed Alexis to live seizure free for the last two and a half years. So what’s the problem? Alexis’ family had to relocate from Texas to Colorado in order to legally obtain cannabis oil and administer it to their child, and now they cannot travel back.

While Cannabis is legal here in Colorado and in 28 other states for medical use, the federal ban means that Alexis cannot even visit her grandparents in Texas without the risk of being taken into custody for having an illegal substance or foregoing her medication and risking seizures away from home.

The Federal government has maintained Marijuana’s classification as a Schedule 1 substance, which means it is considered highly addictive with no medical benefit. This not only makes it federally illegal and limits a patient’s ability to travel or relocate, but it means there are no federally funded studies to determine any medical benefits or understand how marijuana works as medication for certain illnesses. The classification further serves to maintain stigma around marijuana use, even for medical reasons.

So Bortell along with three other plaintiffs, Jagger Cotte, another child who relies on medical marijuana, a marijuana advocacy group called Cannabis Cultural Association, Jose Belen, a US Military Veteran, and former NFL player Marvin Washington, have filed a suit against Attorney General Jeff Sessions, for his continued efforts to keep Marijuana classified at Schedule 1 and keep it illegal medically. Other defendants named alongside Sessions include the DEA, the acting director of the DEA, Chuck Rosenberg, and the US Government.

The case was filed in the US District Court in Southern New York in July. The government responded by filing a motion to dismiss, however the court recently dismissed that motion, allowing the case to proceed.

According to the suit, the plaintiffs seek to have the CSA (Controlled Substances Act) declared unconstitutional. They argue it violates due process and that the specific prohibition of marijuana and its classification as a Schedule 1 substance in effect violates the fundamental right to travel. This fundamental right to travel is the crux of the Bortell family’s concern and motivation to bring this suit.

The plaintiffs argue that the government’s claim that there is no medical benefit is irrational since the government itself has shown it does not believe marijuana to be this dangerous. They also argue that the prohibition is used, or rather abused, to target certain minorities, and they further outline how this classification and federal prohibition violates the commerce clause and right of citizens to travel .

It is difficult to determine this early on if a suit like this can make an impact in the law, but the Court has so far ruled they can proceed. While it could still be dismissed as arguments and hearings continue, other possible outcomes include a change in the schedule classification of marijuana, a change in the ability of people to travel with medical marijuana, a lift on the federal ban for marijuana, or no change at all. Any positive change here, one in terms of schedule or even lifting interstate travel bans, could benefit thousands of marijuana patients who still have to fight restrictions and attitudes in addition to their medical issues.

We have discussed Jeff Sessions’ ideas about marijuana legalization before and the fact that he is somewhat of a hold out with his attitude. Most people, regardless of politics, are increasingly tolerant of marijuana, especially when used medically, and a majority of states have legalized it medically too.

We’ll be following the moves made on both sides of this lawsuit very closely.

ABOUT THE AUTHOR: Russell Hebets
Russell has successfully defended individuals charged with offenses ranging from traffic violations and DUIs to 1st degree murder and vehicular assault, as well as numerous drug cases. Russell is admitted to the Colorado State Bar as well as being licensed to practice in Federal Court. Russell is active in the defense community and is a current member of the Colorado Criminal Defense Bar and the National College of DUI Defense.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.