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 – a legal precedent set by America’s founding fathers – was brought up by Ms. Bernstein during attorney Dave C. Holland’s lecture on Cannabis Litigation Strategies, as potentially the latest legal avenue to pursue, to challenge the current, federal administration’s predilection for prohibition.
Article V, U.S. Constitution
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.”
In other words, where two-thirds of the states propose amendments, which need to be ratified by three-fourths of the state legislatures, or a convention as set by Congress for that purpose. In this case, a convention of 34 states would be required, and 38 states would be necessary to ratify it and overturn the current scheduling.
This seems plausible to achieve, considering medical marijuana is already legal in various forms in 30 states, and the District of Columbia, with two more states about to be added. (Colorado, Washington, and Alaska were the first, second and tertiary states, respectively. out of the current eight, to fully legalize recreational use.)
However, is it a topic necessary for further legal scrutiny to predict what would happen where three-fourths of the states ratify, and Congress does not? Article V does not bypass Congress altogether.
“Article V is an interesting idea; however, no state call for a convention has ever worked before. There were not enough votes,” Holland said. “In fact, it is a novel approach for marijuana legalization, but not for the state-based initiatives to try to amend the constitution. Numerous attempts have been made,” he elucidated.
The federal Controlled Substances Act under 21 U.S.C. 801 was passed in 1970 which classified all drugs, and rated them on a schedule of I-V, depending upon their medical utility and the degree to which they can be safely administered by a doctor.
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.
The CSA has two built-in means by which a drug like Cannabis can be rescheduled. Under 21 USC 811 and 812, the Attorney General of the United States, after all proper review by the DEA/FDA has made a determination about the status, may then reschedule it on his own, believing that it belongs somewhere else.
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.
In these criminal cases, courts have wrestled with the reality that the states have found that there is medical viability for cannabis, and that runs contrary to the rationale for Schedule I status
Justice Scalia wrote in the Gonzalez v Raich case that he believed that evidence about cannabis may be developed someday that would contradict the lack of medical validity prong of the Schedule I criteria. His instincts proved correct, as a body of anecdotal and other evidence has accumulated which puts that designation in doubt.
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.
Many courts have since come to the same conclusion, including the Western District of New York, in US v. Green, which concluded that the classification of cannabis is a political question, upon which courts may not rule.
As attorney Hillel Neuer often decries when denouncing the United Nations, Congress scheduling cannabis is, “like voting for an arsonist to be the town’s fire chief.”
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.
Judge Hellerstein, who heard oral arguments in the case, was clearly swayed by the miraculous beneficial impact that cannabis had on the health of the children plaintiffs. Hellerstein stated that they were ‘living proof’ of the medical validity of marijuana, which undermined that prong of the Schedule I designation.
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.
The plaintiffs in Washington V Sessions have chosen to appeal Judge Hellerstein’s ruling to the United States Court of Appeals for the Second Circuit in New York.
Litigation efforts remain an uphill battle, and the petitioning process still remains an exercise in futility. Apparently, the pathway to rescheduling or descheduling cannabis still remains a political question for Congress.
Or is it?
As posited by Karen Bernstein, Esq., at the Cannabis Law Summit in New York City, on behalf of her student’s hypothesis, there may be an opportunity to force the hand of the recalcitrant Congress under Article V of the United States Constitution.
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.
Given the recent poll figures of more than 90% of those polled supporting medical marijuana, and 60% in favor of the responsible adult use of cannabis, the prospect of getting the three-fourths ratification vote may not seem so far-fetched, according to Holland, in order to be able to legalize cannabis through a constitutional amendment.
Doing so would certainly eliminate much of the uncertainty out there in the medical, business, and banking communities about what may and may not be undertaken concerning cannabis.
Certainly, the plaintiffs in Washington v Sessions would get much-needed relief for the constitutional impairment that they have suffered, due to the irrational Schedule I classification.
However, politics is unpredictable. There may be many strange bedfellows, and orgiastic exuberance of special interest groups, that will each seek to have a say in the language and objectives of any proposed amendment that could be put forth in a convention of states.
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.
According to cannabis law expert, and prolific author of works, including Judicial Process In America, and IRS 280 E and its Application to the Cannabis Industry, Bob Carp, pursuing an Article V legal strategy would be an exercise in futility.
“It won’t work, because it requires 26 congressional reps to have a plurality. You would think that the people who did have it, would organize a bipartisan congressional body. However, even if the bill does pass, it still has to go to POTUS’ desk, and he could veto it,” Mr. Carp said.
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.
Holland remains optimistic. “There really is something to the old adage, ‘nothing ventured, nothing gained,’” he said. “Or, my personal motto as a reformed toker going on 35 years, ‘Time spent wasted was not wasted time.’”
Unfortunately, Article V is not the best precedent for challenging federal prohibition. However, if a national grassroots movement to enact it gets underway, “I Got 5 On It,” by Luniz, will be an appropriate, campaign slogan.