Federal Judge Orders Oral Arguments in Case Challenging Federal Prohibition of Cannabis

Federal Judge Orders Oral Arguments in Case Challenging Federal Prohibition of Cannabis

The case, brought by multiple marijuana companies, centers on the plaintiffs’ efforts to shield in-state cannabis commerce activity from federal prohibition.



The almost century-old federal ban against cannabis continues to show cracks as more and more legislative and judicial challenges relentlessly attack the moral and legal grounds on which the law prohibiting marijuana is based. The latest and most significant battle is in the U.S. District Court for the District of Massachusetts’s Western Division.


As first reported by Marijuana Moment, federal Judge Mark G. Mastroianni, an Obama Administration appointee, on Thursday, agreed to schedule oral arguments in a lawsuit against the federal government brought by multi-state operator (MSO) Verano Holdings Corp, Massachusetts-based cannabis businesses Canna Provisions and Wiseacre Farm, and Treevit CEO Gyasi Sellers.


The case, Canna Provisions v. Garland, challenges the federal government’s prohibition of marijuana, saying it has “no rational basis,” highlighting law enforcement officials’ predominantly hands-off approach to the recent run of numerous state-level legalization initiatives and laws.


As part of their request, the plaintiffs, represented by the law firms Boies Schiller and Flexner LLP and Lesser, Newman, Aleo, and Nasser LLP, said, “The case presents multiple constitutional questions and concerns matters of great importance both in the Commonwealth and nationwide. Oral argument will allow for a meaningful review of these issues.”


"The case presents multiple constitutional questions and concerns matters of great importance both in the Commonwealth and nationwide. Oral argument will allow for a meaningful review of these issues.”

- Plaintiffs' Request for Oral Arguments in Canna Provisions v. Garland


In addition, David Boies, the chief litigator leading the suit, sent a letter to Judge Mastroianni this month in which he stated, “(Oral arguments) would be particularly useful for addressing points raised for the first time in Defendant’s reply brief, including whether the Controlled Substances Act’s (CSA) bar on intrastate marijuana can be upheld as an attempt to regulate ‘marijuana tourism.’”


"(Oral arguments) would be particularly useful for addressing points raised for the first time in Defendant’s reply brief, including whether the Controlled Substances Act’s (CSA) bar on intrastate marijuana can be upheld as an attempt to regulate ‘marijuana tourism.’"

- Letter Sent to Judge Mastroianni by Plaintiff's Head Litigator David Boies


The heart of the case centers on the degree to which in-state cannabis activity impacts and affects interstate commerce, with the government’s position, argued in a Department of Justice (DOJ) filing earlier this month, being that because marijuana legalization draws out-of-state tourists, “it is rational to conclude that the regulated marijuana industry in Massachusetts fuels a different kind of marijuana-related interstate commerce: marijuana tourism.”


“As the Supreme Court held decades ago, Congress has the authority to regulate businesses that cater to tourists from out of state, even if the businesses’ transactions occur wholly in-state,” DOJ said in the brief.


"It is rational to conclude that the regulated marijuana industry in Massachusetts fuels a different kind of marijuana-related interstate commerce: marijuana tourism. As the Supreme Court held decades ago, Congress has the authority to regulate businesses that cater to tourists from out of state, even if the businesses’ transactions occur wholly in-state."

- DOJ Brief Concerning the Issue of "Marijuana Tourism"


To counter the government’s argument, the plaintiffs contend that the Constitution’s Commerce Clause precludes the DOJ from interfering with state-legal activity because it is regulated within the state’s borders.


The case is taking place as the U.S. Drug Enforcement Agency (DEA) grapples with the Department of Health and Human Services recommendation from last year to reschedule cannabis from a Schedule 1 to a Schedule 3 narcotic as part of the Controlled Substances Act


The Biden Administration has shown a commitment to at least considering a more progressive stance concerning cannabis legalization reform. While not going so far as to advocate for an end to prohibition openly, the White House has maintained a staunch position that individuals should not be criminalized by the judicial system over the simple possession and consumption of marijuana. 


However, the DOJ continues to fight reform efforts in the courts, including this current Massachusetts case regarding broad prohibition and other litigation, such as challenges to the ban on cannabis consumers’ gun rights.


The issues of marijuana prohibition and potential rescheduling could end up being vital to this year’s presidential and general election outcomes. With more and more states coming online with medical marijuana programs and adult-use cannabis legislation, those candidates viewed as pro-cannabis could end up having a slight edge over those still stuck in the broken logic and policies of the previous century.