Federal Judge To Hear Arguments Wednesday In Legal Fight Challenging The Constitutionality Of Marijuana’s Illicit Status

Marijuana and the LawA judge for the Federal District Court in Manhattan will hear arguments Wednesday in a lawsuit challenging the constitutionality of federal cannabis prohibition. Lawyers for the plaintiffs in the case include NORML Legal Committee member Joseph Bondy and Empire State NORML Director David Holland.

The 98-page complaint contends that the federal government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act. It further argues that current administrative mechanisms in place to allow for the reconsideration of cannabis Schedule I classification are “illusory.”

A judge for the Federal District Court in Sacramento heard similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them – opining: “At some point in time, a court may decide this status to be unconstitutional. But this is not the court and not the time.”

Plaintiffs in the current lawsuit include a former NFL football player, a disabled military veterans, two children with severe movement disorders, and the non-profit group, the Cannabis Cultural Association. Plaintiffs argue that federal prohibition violates their civil and constitutional liberties, including their right to freely travel within the United States. They also argue that the federal prohibition of cannabis is “grounded in discrimination and [is] applied in a discriminatory manner.”

Lawyers for the Justice Department are arguing for a dismissal of the suit, opining: “There is no fundamental right to use marijuana, for medical purposes or otherwise. Because such a right is not ‘implicit in the concept of ordered liberty’ or ‘deeply rooted in this Nation’s history,’ the Court should reject such a claim.”

Full text of the complaint, Washington et al. v. Sessions et al., is available online here.

25 thoughts

  1. Could be big!
    Gotta feeling something wonderful is about to happen… that strange feeling is called “hope.”

    Don’t play me like Lucy plays Charlie Brown!

  2. Thanks for the coverage, Paul.
    I was just reading the letter filed yesterday by the plaintiff’s lawyer, Joseph Bondy, requesting that 12-year-old Alexis Bortell be allowed to see and hear oral arguments from her home in Colorado, and requesting the ceremonial court room due to the high number of activists and press expected to watch this historic event.

    I have to admit I’ve been covering this case and am constantly surprised… like Roger Stone’s affidavit testafying against the racism against “blacks” and the anti-war left” that the Nixon administration he served used to justify the CSAct…
    …to the fact that this all began when Alexis Bortell’s Congressman and NORML founder Keith Stroup invited Alexis to NORML lobby day and the court denied her preliminary injunction and a temporary restraining order but then granted her far better with a hearing on the merits.

    But I did not know that the plaintiffs lawyers served on the NORML board, and one was executive director of Empire State NORML! Surprise, Surprise…

    Now if Sessions would just get on the stand and tell us all about his campaign donations from depakote… the synthetic drug that tried to kill Alexis before whole plant marijuana stopped her seizures…

    1. Sessions gets his talking points straight from the prohibitionist handbook. I recently read an article on another website–wish I were computer literate so I could provide a link–but the focus of the article was about some drug warrior, who’s been around since Nixon. The article showed Sessions carrying some papers on his way to testify to some committee, and a zoomed in picture of the papers showed talking points straight from that elderly drug warrior.

      So, it’s hardly a surprise that Sessions has a prohibitionist agenda. He’s never intended to be objective (and of course always comes off like that).

  3. Reject my comments; don’t publish my post.

    Ya hypocritical, fascists.

    An alarming 60% of my conservative-leaning thoughts have been thrown away while the hack liberal regulars always get heard here.

    Will be an interesting article when these practices are exposed by a credible news source. Wink wink, hint hint.

    Legalize cannabis. Don’t stop participation by all people. Stop trying to control the narrative for the sheep. You’re part of the problem you think you’re stopping.

  4. Well…

    I want it legalized too, but this is a BS case. Congress passed a law making pot illegal at the federal level. That was a mistake. They need to repeal/replace the law and/or explicitly pass that power on to the States.

  5. I actually think this is going to go in our favor. There are many states that have legalized it in one way or another, and a handful working towards legalization; there is no sound argument that would reverse that. The only downside is how long its going to take going through the appeals process.

  6. Seems to me a well-regulated market that protects minors from drug dealers, imposes regulations that are even described as burdensome by many, and specifically scrutinizes activities around it actually meets the definition of ordered liberty, not the other way around.

    In fact, the ordered liberty argument loses any foundation at all when the facts are presented: 100,000,000 Americans using the plant, 20,000,000-30,000,000 of which are monthly regular users; in the absence of a regulated market a highly disorderly market – and by extension community – restricts liberty by way of the attendant violence and other crimes associated with the plant’s illicit nature.

    If the substance exists in such abundance, and is used with such frequency, and no orderly community exists for this clearly widely used plant, is that not a violation of the principle of ordered liberty by definition? Does this not make a priori argument that in fact the Schedule 1 status in its arbitrary and capricious application, is not ordered liberty but rather disordered liberty?

    Just askin’…

  7. “There is no fundamental right to use marijuana, for medical purposes or otherwise. Because such a right is not ‘implicit in the concept of ordered liberty’ or ‘deeply rooted in this Nation’s history,’ the Court should reject such a claim.”

    If there is any justice, and if this is the defence’s argument, then there is no possible way they can win.
    It’s as if they hadn’t even read the complaint.


  9. *snip* ‘Because such a right is not ‘implicit in the concept of ordered liberty’ or ‘deeply rooted in this Nation’s history,’’

    But alcoholics, tobacco companies, opioid-addicts, and ‘big pharma’ are? Whatever happened to FREEDOM and LIBERTY? If I choose to inhale a plant that’s been proven harmless countless times, over drinking/actual drugs/etc., that’s my GOD given right. If GOD didn’t want us to enjoy it, than it wouldn’tve existed in the first place. It does nobody JUSTICE to ruin lives over a harmless plant.

    The ass-backwardness of that statement reads like it was clipped right from a Monty Python skit… You know what is ingrained in our nation’s history? ‘LIBERTY! FREEDOM! JUSTICE FOR ALL! IN GOD WE TRUST!’

    Good luck on Wednesday!

    1. ask general sessions about his brains endo-cannabinoid system, and its cbd’s, together with plant based cbd’s as from cannabis..

      ask him if his methodist God created these specifically therapeutic systems and cbd’s..

      ask him if this god given brain system and its cbd’s using also cannabis cbd’s was understood back when cannabis was made schedule 1..

      ask his lawyers the legal relevance of this to todays claims of sanctity of law based on its
      existence alone.. even tho based on ignorance.. ask the judge..

  10. From my personal understanding of history. New York is a very corrupt place on the governmental platforms. I would be more optimistic if this was held in California, Colorado or Washington State.

  11. Positive coverage from Tom Angell here:


    He also covers the case on Hemp Industries of America vs DEA on their unlawful marijuana extracts decision.

    Hearing for Oral arguments on Washington v Sessions is now in Courtroom 14D, 11am EST.

    Takeaway; Judge Hellerstien is known for quick verdicts. Motion to Dismiss by Sessions is likely to be denied and he may very well get deposed and subpoena’d for discovery and testimony. (Depakote! Depakote!!) This case is certain to get appealed to an Apellate Court regardless of who wins. If and when it goes to SCOTUS the 1st amendment rights of Alexis will be central, so the preliminary injunction and temporary restraining order on Sessions, the DEA and the CSA is central to this case. Justice Kennedy has a soft spot for the 1st amendment. Justice Alito is in charge of emergency hearings, but SCOTUS might not see this case till early next year, after NJ becomes the first state to legalize dispensaries in a responsible adult market, handing more strategic victories to the plaintiffs.

    Proud to know NORML is representing this historic battle. The harder the battle the sweeter the victory:

    Freedom is NORML.

  12. “There is no fundamental right to use marijuana, for medical purposes or otherwise, because such a right is not implicit in the concept of ordered liberty”.

    The Ninth Amendment (which states that the Constitution doesn’t need to list every “fundamental right”) shouldn’t allow weed Prohibition to even occur. Only in a dictatorship is everything already “rooted in this Nation’s history” and “implicit in the concept of ordered liberty”. Change must be allowed here, by law. Considering that without “Congress shall make no law …abridging … the right of the people … to petition the Government for a redress of grievances” (Amendment 1) and “In all criminal prosecutions, the accused shall enjoy the right …to have compulsory process for obtaining witnesses in his favor” (Amendment 6) and the right to new vices (Amendment 9) the government could make anything illegal not listed 250 years ago, saying it is not “implicit in the concept of ordered liberty”.

  13. “Lawyers for the Justice Department are arguing for a dismissal of the suit, opining: “There is no fundamental right to use marijuana, for medical purposes or otherwise.”

    Seriously? That is their primary argument?

    Could someone at the Justice Department please tell us exactly what we do have the fundamental right to use and how they come to their conclusions? Do we, for example, have a fundamental right to kill animals and then eat them or cut off and then sell their body parts? How can that be? Who decides?

    Unfortunately, this is the kind of idiocy I have come to expect by representatives of the federal government. It is why I have come to have zero respect for them!

    The lawyers are not, in my opinion, representing what it means to be an American! How can it be that they seem to think it is okay to jump out of an airplane with a parachute, or climb a mountain, or smoke 3 packs of cigarettes a day are okay but not to smoke or even vaporize a bit of cannabis. Are they so incredibly stupid as to believe that vaporizing cannabis is the more dangerous thing to do?

    The stupidity of these people is just astounding!

  14. re; “There is no fundamental right to use marijuana, for medical purposes or otherwise.”

    read the CONSTITUTION;
    there is NOTHING in the constitution that gives the government the authority to make marijuana, alcohol, or just about anything else, illegal.

    rat POISON is legal to buy, in every state.
    and you do not need to sign a paper, promising, that you will not eat it.
    if POISON is legal to buy,
    how can something that is NOT POISONOUS, be illegal ???

    they had to make a constitutional amendment,
    to give them the authority, to make alcohol illegal,

    and that constitutional amendment,
    when that constitutional amendment was undone.

    therefore; marijuana prohibition is also UNCONSTITUTIONAL.

    they will say, that the controled substances act,
    makes it o.k.,

    but the controled substances act is an UNCONSTITUTIONAL end-run,
    that they put in place,
    PRECISELY because they KNEW,
    that ‘marijuana prohibition’ would be just as UNCONSTITUTIONAL as ‘alcohol prohibition’ was,

    and that another constitutional amendment about ‘prohibition’ would never pass.


    that is the only way to end this,
    ‘once and for all’.

    if we say that the gov’t has the constitutional AUTHORITY,
    to make magic mushrooms, cocaine, LSD, and opiates illegal,
    then they OBVIOUSLY have the constitutional AUTHORITY,
    to make marijuana illegal.

    before the ‘controled substances act’,
    and we had less problems with drugs, then.

    bringing the black market into it, solved nothing.

  16. How can the government deny the medical benefits of canabis
    When they themselves hold a patent on medical canabis? Patent 6,630,507. Then to argue that it should still be considered a schedule one drug show how one sided and Crocker our gov really is. If marijuana had lobbiests like big Pharma does pot would have been legal 30 years ago

  17. Actually, the DOJ is wrong. Such a right IS deeply rooted in this nation’s history.

    Just do a quick google and you will find Cannabis is an integral part of this nation’s origins and development. It is literally a plant with thousands of uses, and in Colonial times it was a valued crop.

    Why were people in Colonial times not arrested for growing cannabis if it is soooo dangerous?

  18. I say I gave nobody the right to tell me what I do with my body. We all just keep smokin and growin and they can go “F” themselves

  19. I’d rather have 1,000 stoners living in my neighborhood over 1 meth addict but they are both schedule 1 drugs. Wtf!!

  20. I fascinated in how he wold back out of this. If he rejects the suit potentially he could eventually be removed from the bench by a new administration who recends MJ from the CSA or remove it all together. If he accepts the case, he could risk being removed immediately. I kinda see it as a catch 22 hope he’s willing to fall on his sward hear the case, decide we have merit and remove it from the CSA. thus changing everything. Plus avoiding a major states rights and Supremacy clause.A whole other issue.

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