In a New York courtroom packed with cannabis supporters, the Trump administration urged a federal judge to throw out a lawsuit that aims to pave the way for legal marijuana across the country.
The case was brought on behalf of two sick children, a former National Football League player who says athletes deserve a better way to treat head trauma than addictive opioids and the Cannabis Cultural Association. The suit, filed in July 2017, seeks a ruling that marijuana was unconstitutionally labeled alongside heroin and LSD as a so-called Schedule I drug — the harshest of five government ratings — when Congress passed the Controlled Substance Act in 1970.
In court on Wednesday, Justice Department attorney Samuel Hilliard Dolinger said the plaintiffs didn’t follow legal requirements before suing, beginning with a petition to the Drug Enforcement Agency.
“The right thing is to defer to the agency,” said U.S. District Judge Alvin Hellerstein, an 84-year-old who was nominated by former President Bill Clinton, who famously admitted to experimenting with pot while claiming he “didn’t inhale.”
Cannabis legalization has gained momentum in states, even with an unfriendly face in the U.S. Attorney General’s office. Nine states and Washington, D.C., allow adults to use the plant as they wish. More than one in five people can legally eat, drink, smoke or vape, according to state regulations. Twenty additional states have legalized pot for medicinal use.
Hellerstein said he would issue a ruling later, and it was far from clear which way he was leaning. The judge, who had the courtroom erupting in laughter on more than a few occasions during the hearing, was skeptical of the government’s claim that there’s no medical benefit to marijuana.
“Your clients are living proof of the medical effectiveness of marijuana,” Hellerstein said to the plaintiffs’ lawyer, Michael Hiller.
The legal cannabis industry is predicted to reach $50 billion in sales by 2026, up from $6 billion in 2016, according to investment bank Cowen & Co. Still, the industry is rife with risk. Attorney General Jeff Sessions rescinded in January the Obama-era policies that ushered in legalization in many states.
The lawsuit has some star power with plaintiff Marvin Washington, who played for the New York Jets. He joined the case because the Controlled Substance Act made him ineligible for grants under the Federal Minority Business Enterprise program, which he planned to use for his medicinal cannabis business.
The suit also highlighted the human toll of the federal government’s war on marijuana with young plaintiffs whose lives have been saved or improved by cannabis, including 11-year-old Alexis Bortell of Colorado and seven-year old Jagger Cotte of Georgia.
Bortell’s epileptic seizures were brought under control by cannabis after her family moved from Texas to Colorado so she could legally use it in that state, according to the suit. Cotte, who suffers from Leigh’s Disease, was able to treat excruciating pain with medicinal marijuana and prolong his life by two years beyond his maximum prognosis, according to the suit.
The complaint notes that American presidents from George Washington and Thomas Jefferson to John F. Kennedy and Barack Obama have smoked pot. It also claims the Nixon administration was motivated by ulterior motives when it pushed for the Controlled Substance Act.
Cannabis was criminalized “not to control the spread of a dangerous drug, but rather to suppress the rights and interests of those whom the Nixon Administration wrongly regarded as hostile to the interests of the U.S. — African Americans and protesters of the Vietnam War,” the suit says.
At the hearing, Hellerstein said that argument wasn’t going to work with him.
The decision “will not depend on what may have been in the mind of Richard Nixon at the time,” Hellerstein said.
— With assistance by Jennifer Kaplan