Update: Federal Judge Reserves Decision After Hearing Arguments In Washington, et.al v. Sessions

Today, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York heard oral arguments on the motion to dismiss Washington, et.al v. Sessions, et.al, a federal lawsuit challenging the constitutionality of the Schedule I classification of cannabis under the Controlled Substances Act. The federal government argued to have the case dismissed. Judge Alvin K. Hellerstein of the U.S. District Court Southern District of New York reserved the decision.

The lead attorney for the case, Michael Hiller released the following statement:

First, we would like to thank Judge Alvin K. Hellerstein for taking the time to hear the important oral argument made today. We appreciate the time he took to hear from the plaintiffs we represent —  all whom have heartbreaking stories about how their everyday lives continue to be negatively impacted by the prohibition of cannabis.  


Protecting our American values, way of life and civil and constitutional rights are who we are as Americans. To many, it is obvious, we are living in an era where we must remain vigilant and ask hard questions. If we look back at our collective history, this is not the first time we have seen some in the US government shamefully argue out-dated ideologies under a legal mask that is inevitably on the wrong side of history. We saw this with slavery, segregation, women’s right to vote, the Civil Rights Act, the Americans with Disabilities Act, gay marriage, and sadly, countless other times.  


We’ve seen civil rights trampled on before, but we have also seen everyday Americans and leaders rise to the occasion and have our judicial branch recognize when an interpretation of the law is obviously tragically flawed and wrong.  


The stated basis for the Controlled Substances Act was to help Americans’ lives. However, today, the federal government came to court to preserve the right to put Americans in jail, who use cannabis — even when it used as an alternative medicinal treatment to addictive opioids and powerful prescription drugs. Tragically, what the federal government has done is taken the Controlled Substances Act and turned it on its head. Sadly, the government is now using the ‘Act’ to hurt and oppress US citizens, rather to liberate, deliberate and help them treat their illnesses and diseases.  


We firmly believe the federal government is prostituting and perverting the Controlled Substances Act as well as blatantly criminalizing behavior that they themselves are inducing. We look forward to standing on the right side of history and ensuring that cannabis is descheduled once and for all as well as to receiving Judge Hellerstein’s decision, and moving the case forward.

Lawyers for the plaintiffs in the case include Michael Hiller and Lauren Rudick of Hiller, PC, NORML Legal Committee member Joseph Bondy, and Empire State NORML Director David Holland.

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 argued today 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.”

The judge asked how anyone could say that the plaintiffs’ lives “have not been saved by marijuana.”

68 thoughts

  1. 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.” HUH??? Try again… Going back to 1619 America’s first marijuana law was enacted at Jamestown Colony, VA. All farmers were ordered to grow Indian hemp seed. Mandatory cultivation laws were enacted in MA in 1631, in CT in 1632, and in the Chesapeake colonies in the 1700’s. I’d say that’s deeply rooted!

  2. Cannabis is absolutely “deeply rooted in this Nation’s history”, Our founding fathers grew this plant for multiple purposes. It sounds like the prosecutors and lawmakers need to go back and reread our history!

    1. The wrongful scheduling of marijuana has resulted in many lost lives, addiction to opiates and life sentences in prison. Marijuana has too many health benefits to list with no side effects. The reason why is was made illegal was to appease big pharma.

    2. This is just some of the proof that I’m hoping that lead attorney Michael Hiller enters this to Judge Alvin K. Hellerstein looks at. This is in the history book and is well documented information about cannabis us in the U.S.A. and that it was part of our pharmacopoeia for nearly 100 years before taken off because of a couple individuals that had no scientific evidence that it was bad for you just they were very influential and didn’t want it around. And lets not forget “Tricky Dick” and the information that was gathered by his so called “shafer commission” to prove how bad cannabis is for the american people but in turn back fired in his face after the findings by his own commission.

      1850 – Marijuana Added to US Pharmacopeia

      Cover of the 1851 United States Pharmacopeia
      Source: antiquecannabisbook.com (accessed Dec. 12, 2011)

      “By 1850, marijuana had made its way into the United States Pharmacopeia [an official public standards-setting authority for all prescription and over-the counter medicines], which listed marijuana as treatment for numerous afflictions, including: neuralgia, tetanus, typhus, cholera, rabies, dysentery, alcoholism, opiate addiction, anthrax, leprosy, incontinence, gout, convulsive disorders, tonsillitis, insanity, excessive menstrual bleeding, and uterine bleeding, among others. Patented marijuana tinctures were sold…”

      Richard Glen Boire, JD and Kevin Feeney, JD Medical Marijuana Law, 2007

  3. This is deplorable! I guess it’s ok to get hooked onto harmful opiates and keep funding big pharm watching people’s lives get destroyed by it but it isnt ok to use the medicinal properties of a naturally growing plant? The u.s. government has lied an contorted the use of medical cannabis since the reefer madness age. Jeff sessions and anyone who has these beliefs an are working over the American people need to be removed from office. Their beliefs are harmful dangerous and complete lies about medical cannabis

  4. Stop this war on drugs it has destroyed more lives wasted more money then all modern wars combined. Legalized Cannabis will benefit the our country make create more jobs boost the economy and pay down American’s Dept. Jeff Sessions the people of this nation can and will think for their selves we never asked for you to think for us. Give people the chance to choose for themselves. Jeff sadly does not have the American people’s best interest in his heart.

  5. I have always belived that making cannabis illegal, infringes on individuals 9th Amendment to the Bill of Rights.

  6. Thank u for keeping us updated .
    If there is another suit that gets started let me know as a Cancer patient in remission I count on cannabis to help me daily

  7. Simply scheduled incorrectly.
    1. It HAS medicinal value
    3. It has never caused a death from overdose
    DESCHEDULE and fix the damage the incorrect classification has caused.

  8. My take on the 2014 decision?

    “At some point in time, a court may decide this status to be unconstitutional. But this is not the court and not the time…

    …because I’ve got a big fat check from the drug war profiteers burning a hole in the pocket of my judicial robe and a gaping hole in myself where my soul was before I sold it.”

    1. Demonhype,
      Well, I am not a lawyer, but it seems to me it WAS the court, because there they were, court in session. And yes it WAS the time, because this shit is so plainly way overdue. So, yeah, I agree. Sounds like corruption.

  9. I was not aware that we had to prove we have a right to be free but rather the government has to prove that they have the right to take a freedom away. The government does not have a vested interest in weed prohibition. In fact the government has a vested interest in legalizing marijuana as stated by Oregon Governor Brown to the press on Jan 4, 2018.

    1. I imagine that the proper procedure would be to order the reduction of marijuana from a schedule 1 drug to a lower more appropriate scheduling to permit legal clinical study of the effects of marijuana on the individual and society and after a period of time (2yrs) the government must show positive proof that marijuana shows significant damage to the individual or society. If the government fails to do so then it should be removed from the CSA altogether.

  10. I believe they Nikola Tesla. Americans because they had Investments in paper from trees. Because they owned all the land.

  11. “However, today, the federal government came to court to preserve the right to put Americans in jail, who use cannabis — even when it (is) used as an alternative medicinal treatment to addictive opioids and powerful prescription drugs” and yet “In all criminal prosecutions, the accused shall enjoy the right …to have compulsory process for obtaining witnesses in his favor” (Amendment 6). Hence, weed Prohibition is Unconstitutional.

  12. Or, Congress could get off their collectives backsides and legislate. They didn’t do it in the Obama era either. This is a billion dollar industry issuing against Federal law even though millions of Americans have cast votes and successfully changed State laws. Congress is more concerned about the rights of 800k illegal aliens than millions of voting American citizens. The swamp is still too full.

    1. Sorry, I don’t quite understand, maybe because decades ago I was a supposedly “legal” immigrant in Europe for 6 years before they kicked me out (free plane ride to New York) for possessing a chunk of hashish the diameter of your littlest fingernail. I believe it is immoral for anyone to be declared “illegal” for entering a part of the planet supposed reserved by a scriptural Gawd to any one particular tribe or family.

  13. I often wonder why our gov doesn’t want to legalize it when the NSA,CIA,DOD,FBI and Homeland security is so willing to over look prospective candidates canabis use. Especially those that are part of the cyber security departments. Not to mention Congress and the Senate Members and Employees,plus the other side of the Cyber coin.
    Can you say stupidity!

  14. We shouldnt have to worry about going to jail over saving our loved ones lives, especially when all the approved legal options are more harmful and many times deadly. Nature shouldn’t be illegal….God gave us this plant, that helps and heals, man made the chemicals that harm and kill. End the Injustice, please and thank you. My daughters life should be seizure free legally!

    1. not so long ago our human brains endo-cannabinoid sytem together with its cannibidiols [cbd’s], were not understood as they are today..
      todays understandings including this brain systems use of plant canninoids such as from cannabis sativa, in various real therapeutic positive ways including pain related, seizure related [ie, ability to control,, and cure,,]
      as directly relate to poisons scheduling,
      make any and all past claims supporting the highest scheduling – as if heroin or strychnine, plainly wrong and misguided..

      the law and scheduling must reflect the best most up to date understandings as to any drugs
      actual purposes and functions in our brains..

      old false assumptions based on seeing overdosed
      users behaving as if drunk on alcohol, while
      not unsurprising when made from a state of basic ignorance,, cannot be sustained today,,
      within todays understandings of our brains endo-cannabinboid system – together with its use of plant cannabidiols such as cbds of
      natural cannabis – creating the absurdity of
      human brains cbds being scheduled as if heroin..
      god made our brains and their endo-cannabinoid system, and cannabis sativa and its cbds,,
      or if you like, our brains and plant cbds evolved over vaste stretches of time, to be part of a [god given] therapeutic medicine..

      1. There’s a theory that cannabis evolved to be serviceable to humans as a result of ingesting human waste. Women trekked miles to gather hemp stalks and drag them to the house (for roof thatching, cooking fires (like that smell?) and other uses); seeds fell off and rooted in human dung piles, hence the Partnership we are observing today.
        More on this on the talk page at Wikiversity: Ethnobotany.

  15. I suppose, when the lawyers for the Justice Department opined that there is no fundamental right to use marijuana because such a right is not ‘deeply rooted in this Nation’s history,’ they must have actually meant to say “white revisionist history.”

    1. The people we know about who used hemp in America were white people. Jefferson had some good things to say about hemp.

      That of course makes hemp bad because he owned slaves.

      1. @ MSimon,
        Shut the fuck up, white trash. I wasn’t calling for more white revisionist history!

      2. Please bypass your teenage lingo memory, even when admonishing racists, and use gentle genteel polite Polish here.
        Hemp-assisted psycholinguistic research (hearing what the words say) shows that “fwcq” is a condensation of foot+butt+poke and implies that you are obsessed with playground bully violence. (My butthole is too small for your fat foot to fit in anyway.)
        “Shwt” resembles “$#!+” which contains shoot+hit and implies you are obsessed with GUNS (too much TV watching, such as, currently, the brutal violence-packed trailer for allegedly good movie “Black Panther”).
        Get a smooth vapourous microtoke and show off the good productive ideas you sometimes are capable of.

  16. Of course… the “rooted history” comment was a catastrophic failure to examine the evidence from a long list of exhibits filed… but the dismissal was tragically predictable… the DOJ got to the Judge. Campaign donations during an open case? Threats to his career? His family?

    So the big question is: will the plaintiffs APPEAL?

  17. The opposition to marijuana in our country is not founded on health issues. The opposition to legalization by some Senators and Representatives (the majority of whom are Republicans) is based on the amount of money they receive from pharma, alcohol, tobacco and the private prison system. Our governments are supposed to serve the people’s will not persecute informed consenting adults who choose to ingest a benign herb rather than liver and brain killing alcohol or cancer producing tobacco.

  18. The coverage here from apnews suggests Judge Hellerstein accepted the evidence of marijuana’s medical efficacy:


    Stating “Who could say marijuana didn’t save your clients’ lives?”
    But rejected the affidavit of Roger Stone condemning the Nixon administration’s racist motivations under the CSAct stating
    “You won’t win like that.”

    What happened to Alexis Bortell’s 1st amendment rights? I thought that was central to this case?

    Judge Hellerstein “reserved judgement” on the dismissal because he says he bought the DOJ argument that none of the plaintiffs “petitioned to reschedule marijuana with the DEA.”
    NORML councel argued that re or de-scheduling marijuana “is a process that takes 9 years.”

    Did the councel mention, as members of NORML, that NORML had DEA petitions rejected at least twice, one taking about two decades for the DEA to deny?

    What about the treasonous, unconstitutional language in the CSAct that forces the DEA and ONDCP to use our tax dollars to deny the medical efficacy of marijuana? Was that explained to Hellerstein during oral arguments?

  19. Jimmi Divine from Cannabis Now suggests that Attorney Miller does plan to appeal for the Plaintiffs:


    “Michael S. Hiller, an attorney for the plaintiffs, said in a statement after the oral arguments were heard today that his plaintiffs intended to see the case through to its conclusion.”

    Good news, indeed. This case is going to an Apellate court, regardless of the Judge’s final decision.

    Incidentally, I applaud the Cannabis Cultural Association for their efforts to draw attention to the racism that tragically created the CSAct, regardless of what any Judge says, but… couldn’t ya’ll have come up with a better acronym than “CCA”? The same as “Corrections Corporation of America”? One of our biggest prohibitionist opponents out there? Change “Association” to “Network” and start a cable channel.

  20. So, according to the justice departments lawyers logic there…you have no rights unless they’re explicitly laid out…and we have to operate society in a manner in accordance with history?
    No such thing like a right to drive, a right to have a cell phone, or right to drink soda exists either….

  21. Native Americans were smoking marijuana long before there was a constitution. Sounds like the DOJ has reverted to panick mode as they are merely spewing out unsubstantiated verbal diarrhea and it is showing more than ever to those who will indeed change laws.

  22. The DOJ is apparently adhering to an authoritarian version of the concept of ordered liberty. I much prefer Edmund Burke’s view: “[The Law] must bear…with the vices and the follies of men, until they actually strike at the root of order.” Our federal cannabis laws were enacted not to protect the roots of order but to further first Anslinger’s and then Nixon’s racist political agendas.

  23. 30+ years of legalization activism ~ I’ve donated close to $10G towards it over just 2 years ~ and all the scouring of everything – never specifically revealed, before:

    “Any person can submit a petition to the DEA,” Assistant U.S. Attorney Samuel Dolinger said.”

    Next up, Mr Hiller only makes 2nd to best point, about what’s happened since US vs Kifer, 1973:

    Hiller & et al (all) go in this inferior/wrong direction; an unprecedented, ultra conservative (turning back the clock) approach to prosecuting civil litigation would be the winner: America was founded with & on marihuanna, before FDR forced everyone to use that pejorative. (& then) Case Closed.

  24. So I can grow any other plant, flower, vegetable, tree, etc at home and do what I choose with the product? It should not be illegal to cultivate and consume as I choose.

  25. I live in northern Michigan we have 7 deaths from heroin and phenol no one here has of on the medical marijuana these are also children dieing the ods is so sad it’s our medicine from God that’s allowing us to heal from so many ailments it cures cancer drugs don’t the mm is an herb from mother Earth what company is creating heroin and phenol they are at fault

  26. So, seeing an article about Berkeley, California deciding to not enforce marijuana laws and oppose any federal intervention in matters relating to cannabis made me think. In states where there are bills pending on such matters and things are going at a snails pace, why don’t we as the people do the same and show Mr. Jeff Sessions that we don’t need him to speak for us and are tired of of wasting tax dollars and prison cells on consenting adults who have done nothing more than smoke, possess, grow a plant that has medicinal benefits and would bring us jobs, industry, medicine, and culture. Then those tax dollars could go towards more important things like schools, roads (which would be great in Pa,) and not infringe on our constitutional rights and ruin people’s lives for no good reason.

  27. The whole controlled substance act is based on a fallacy. “Drugs cause addiction.”

    People in chronic pain chronically take pain relievers.

  28. How long to we have to wait for the decision I wonder? Sessions will have something up his dirty keebler elf sleeve in which he will most likely dump a bunch of money into someones pocket to try to get his way. Sessions is a heartless PoS. He wont even show up to the hearing because he knows he will get stomped on. Lets end the pointless prohibition. Cannabis never hurt anyone, except the pockets of the pharma companies. Lets take back what true American freedom really is. Freedom to heal thyself and freedom to get high thyself.
    Safe, effective and WAY safer than any pill.

    1. Sessions will show up if he gets ordered to testify with a subpoena. Even a video deposition explaining how he made camapaign money from depakote would suffice… even while the synthetic drug was under litigation and evidence showed a variety of strains of whole plant marijuana is effective at stopping seizures in people like Alexis Bortell, while depakote would have lead to her to permanent brain damage. This case is far from over.

  29. Judge Hellerstein is clearly taking his time with this decision, knowing it will likely be appealed. It’s time for patients to flood his courtroom with letters, asking that the lawsuit be heard.

    There is a disease called Attention Deficit/Hyperactivity Disorder (ADHD). 21 million Americans have ADHD.

    The DEA tells parents that Methamphetamine, a drug which causes psychosis, enlargement of the child’s heart, high blood pressure, heart attack, and stroke, and which has withdrawal symptoms that are horrific, is safer than cannabis is.

    This is a bald-faced lie.

    Most adult ADHD patients who survive the DEA-permitted therapy as children, switch voluntarily to cannabis, despite the drug being illegal. About 18 million Americans who habitually use cannabis daily, despite all risks of punishment, do so because of their ADHD. Cannabis is simply gentler on the mind and body, than DEA-backed Methamphetamine is.

    The ADHD drug the DEA pushes is also causing the Opioid Crisis. The DEA has access to the proof of this. Either the DEA refuses to believe the proof, or doesn’t care to study the proof and learn from it. You can see that proof in 12 pages, right here: https://t.co/pzVCtYWkeu

    It’s dangerous to allow the DEA to push Methamphetamine to children. And that’s what will continue to happen, if this lawsuit is dismissed. We all need to write to the judge and ask him to let the suit proceed.

    1. Bob,
      Flooding the court with letters from mmj patients may not be a bad idea, but I suspect the DOJ is using whatever delay tactics possible while Republican prohibitionists like Chuck Grassley who chairs the Senate Judiciary Committee flood our Federal Courts with inexperienced, extreme right wing judges. Ultimately the federal prohibition of marijuana will be determined by midterm elections, and getting more Democratic Congressman who reject PAC money into Congress like Beto Orourke. I suspect any federal judge doesn’t want to drop the hammer on a Constitutional crisis Congress needs to fix. But the overwhelming evidence of irrepreable harm in violation of the Constitution here requires a temporary restraining order and preliminary injunction until Congress deschedules marijuana, effective immediately.

  30. all old scheduling decisions happened before, todays knowledge of endo-cannabinoid systems in all human brains.. are thus now irrelevant..

    our endo-cannabinoid system also uses plant based cannabinoids [CBD’s] just as it uses our own naturally created CBD’s..

    if you believe in a god then god created our brains endo-cannabinoid systems and god created plant based cannabinoids.. a gift from god..


    1. Barry,
      While I may actively be snowbirding it between Mexico and Canada to legalize marijuana in the United States, NEVER GIVE UP on the legislative process. Your state and federal representatives do have to respond to your requests… and you CAN influence them face to face. ESPECIALLY during elections.

  32. human brains endo-cannabinoid system, a complex and wonderful therapeutic system using our own cbd’s together with plant based cbd’s, has only recently become understood for the wonder it is..
    scheduling decisions made by uninformed politicians and unelected officials last century, well into last century,, are now redundant,, due to absence of understanding of our endo-cannabinoid system,, thus false assumptions as to cannabis interactions with the human brain.. cannabis together with our endo-cannabinoid system can, cure, epilepsy…

    my temporal lobe grand mal epilepsy was cured by ongoing use of natural cannabis, smoked throuth water.. sessions and other misguieded fools must be forced to watch a child having epileptic seizures.. there must be some good in him somewhere, immune to corruption etc..

  33. I think it should be pointed out that Cannabis helps people quite drinking and stay off alcohol. the most harmful of all drugs!!!

    1. @ Robert,
      Agreed cannabis can help some people quit drinking. I am one of them.

      But, fact is, tobacco is the most deadly recreational drug around, hands down, and it’s not even a close contest.

      1. Thanks for that reminder! 6 million “tobacco” deaths a year worldwide compared to maybe a million for pharmaceuticals.
        But there is a clarification needed: not tobacco per se but the ferociously trillion-dollar advertised Hot Burning Overdose Monoxide $iggerette serving method is to blame for those deaths!
        I don’t like tobacco and don’t consume it but I think it must be agreed, the nicotine doesn’t do a tenth as much damage as the monoxide and other combustion poisons, and cannabis users will lead the way to solving the “$moking” toxicity problem by
        a. vaping instead of smoking
        b. getting to know many more great Alternative Herbs (look that up on Wikiversity.org) such as alfalfa, basil, borage, bucho, cannabis, catnip, chamomile etc.
        c. substituting the 25-mg microtoke instead of rolling up expensive wasteful monoxidal 500-mg paperpuff J’s.

  34. As a disable veteran suffering from numerous disorders this plant safes my life. Keeps me off of man made poison that destroys our society. I have the right to self-determinate!!!

    1. And thats ultimately what this case is all about: Our freedom to grow our own food and medicine vs. synthetic predation from saprophytic billionaires that would rather turn public schools into private quota prisons and community gardens into price-inflated hospitals. It’s whole plant freedom vs. synthetic patents. And to get there the difference is between voting for candidates that reform marijuana law and refuse PAC money vs. those that sell their souls for predatory profit. Let’s make sure Judge Hellerstein isn’t taking campaign donations, threats or pledges during an open case…

  35. https://www.leafly.com/news/politics/meet-the-lawyer-suing-jeff-sessions-to-end-cannabis-prohibition?utm_source=Sailthru&utm_medium=email&utm_campaign=Sponsored%20Newsletter%20-%202/24/18%20-%20Kannabia

    Excellent coverage from Leafly interviewing Empire State NORML Executive Director and one of the Plaintiff’s lawyers.

    If the case gets denied it goes to trial.

    Or… 30 states with legal medical marijuana will result in Judge Hellerstein rebuking Congress for not descheduling what is clearly, according to the plaintiff’s testimony and evidence, life-saving medcine.

  36. Our own government has lied to us about marijuana not having any medical value, that’s why the federal government got a patent on marijuana in 2008 look it up.

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