Can Article V federally legalize cannabis

As the fight for country-wide marijuana legalization gains momentum, lawyers have come up with some innovative ideas for challenging prohibition, such as the landmark Washington V Sessions case, which incubated at a Cannabis Bar Association meeting. Another engaging idea – Article V – was floated by intellectual property attorney, Ms. Karen Bernstein, on behalf of one of her law students, at the Cannabis Law Summit, which took place at the law offices of Duane Morris, LLP.

Article V states, “The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight (1808) shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Cannabis was placed in Schedule I, the most restrictive designation, based on three criteria that 1) it has no medical validity, 2) it has a high potential for addiction and abuse, and 3) it cannot be safely researched or administered by a doctor. As such, it was deemed to have no safe or effective use and was relegated to the same classification as PCP and heroin in Schedule I.

Schedule I was only supposed to be a temporary designation for marijuana. The Shaffer Commission was set up in 1970 to look into marijuana, to see if it belonged elsewhere. At the end of their investigation, the Commission did not believe that Schedule I was an appropriate designation for cannabis. However, Congress did nothing to reschedule cannabis based on their investigation.

To date, no Attorney General has exercised that power, and the closest we have seen to that were the guidance memoranda that were issued from 2009-2013 by Deputy Attorneys General Ogden and Cole which gave instruction to the United States Attorneys sitting in districts within a state that legalized cannabis in some form to conserve their prosecutorial resources, and not go after state compliant patients, or distributors.

These guidance memoranda have been repealed or “rolled back” by Attorney General Sessions, but he has not reversed the guidance memo from Cole to FinCEN, which set forth criteria and safeguards for the financial industry to feel secure in banking and taking deposits from cash involved in cannabis transactions. Incidentally, cannabis companies are switching to ancillary blockchain technology companies, such as 420Blockchain.

According to Holland, the other means under the CSA to reschedule cannabis is for an “aggrieved party” to petition the DEA/FDA, seeking reclassification based upon scientific or other evidence of claims which would advance their interests. Under the CSA, the aggrieved party must exhaust this option before seeking redress from litigation in the court system.

Several petitions have been filed since 1976 when NORML first filed, and then litigated, their petition seeking to reschedule. Not only is the petition process inordinately prolonged, up to a decade, because the DEA/FDA do not move quickly to render a determination, but there has been absolutely no movement, or any indication of any policy change concerning cannabis, as the result of any petition.

Noteworthy cases have included NORML’s effort in 1976, where Judge Young stated that cannabis should put in a less restrictive schedule, but was powerless to do so, and in 2012 when the Americans For Safe Access/Coalition to Reschedule Cannabis v. DEA, where scientists sought to reschedule to conduct more research, and in Bryan Krumm v. DEA, which denied him relief in 2016 to permit medical usage for his patients in New Mexico.

Interestingly, exhaustion of the administrative petition remedy has not been a bar to claims of constitutional rights violations brought by criminal defendants in criminal cases. There, because the federal government had commenced the action in the federal court forum, the courts have not precluded challenges to the CSA raised in defense of the charges, even though the CSA does not expressly provide for a remedy under those situations. Claims raised by criminal defendants in those cases have generally been to the power of the federal government to have jurisdiction over someone who is just growing marijuana for their own use, without selling it, as addressed by the US Supreme Court in Gonzalez v. Raich, to nullification of the supremacy of the federal law through the Ogden and Cole Memoranda, which fosters state-based cannabis markets, which was addressed in US v. Canori, to lack of scientific evidence to support the continued Schedule I designation of cannabis, which led to a five day hearing in US v. Pickard.

Courts have further wrestled with the question of who gets to decide what happens to cannabis’ scheduling, and where it more properly belongs. At the end of five days of expert testimony, the judge in the Pickard case ruled that she did not think it was the province of the courts to make such a decision, which is best left to Congress, which put it there in the first place.

In 2017, the Washington v. Sessions case commenced litigation in federal court. Five plaintiffs brought a number of claims regarding how their civil rights were violated, due to the continuing Schedule I status of cannabis under the CSA. Their claims related to health concerns. The plaintiffs used cannabis for their wellbeing, and in some cases, for their survival. They had travel claims because they could not commute by airplanes, buses, or interstate highways while in possession of their cannabis-derived medicine. They additionally claimed unlawful impediments to equal opportunities to receive government funding and grants to engage in cannabis-related businesses.

Nonetheless, while making statements that suggested that the classification of cannabis is a political question, as Pickard and Green found, Judge Hellerstein came up with a quixotic ruling. More specifically, he held that while criminal defendants may advance their constitutional claims directly in court, these five civil litigants were first required to exhaust the administrative petition requirement, before he would have jurisdiction to hear their claims. In other words, while he empathized with the plaintiffs, he still passed the buck.

Article V permits two-thirds of the states to call for a Convention of States to put forth proposed amendments to the Constitution. If the proposed amendment is passed by three-fourths of the states as they are comprised in Congress (three-fourths of Congress approves the convention of states proposal), then the Constitution will be amended. This is different from a constitutional convention because the power to summon the convention is being derived by an exercise of state power under Article V and the 10th Amendment, rather than by Congress calling for it in the first instance.

This is an attractive possibility to circumvent the stubbornness of Congress and the courts. To obtain the initial two-thirds support, or for 34 states to call for the conference of states, may not be a long shot. With 30 states having legalized cannabis already, that is presumptively 30 votes in hand. With several more states contemplating legalization, it may not be that far-fetched to solicit and expect an additional four votes that would then constitute the required number for that convention to be called.

It may be, for that reason, that since the founding of our nation, the scores of efforts to call for an Article V state convention to amend the constitution have failed. Not once has an Article V proposal passed muster at the three-fourths approval ratification and adoption phase. Past Article V failures have included efforts to amend the constitution on issues that myriad citizens cared more strongly about than the classification of cannabis.

Perhaps this futility is not entirely unworthy of pursuing. Without such past “futile” efforts, which included petitioning the FDA, litigating against the DEA, and amendment efforts through state-based calls to action, the cannabis dialogue and movement might never have progressed to legalization in 30 states. Specifically, the passage of federal appropriations amendments, which prohibit federal law enforcement from using federal funds to investigate and pursue state-compliant marijuana patients and commercial centers, would not have passed.