We’ve written extensively on a federal lawsuit filed by five plaintiffs against Attorney General Jeff Sessions challenging the constitutionality of the federal government’s continued classification of cannabis as a Schedule 1 drug under the Controlled Substances Act (CSA) (here, here, and here). While we were cautiously hopeful, the Judge dashed those hopes yesterday when he granted the government’s motion to dismiss the case, styled as Marvin Washington et. al. v. Jefferson Beauregard Sessions, III, et al.

In a nutshell, the plaintiffs sought a ruling that the continued classification of cannabis has no rational basis because cannabis clearly has a medical use. (Recall that the standard for Schedule I includes “no currently accepted medical use in treatment”). Although this is certainly true, it was not enough to win the day due to a few insurmountable and incredibly frustrating procedural hurdles.

Exhaustion of Administrative Remedies

Generally, parties must exhaust available administrative remedies before they can seek relief in federal court. The Judge found that these plaintiffs failed to exhaust an available remedy under the CSA: Interested parties can petition the DEA to reclassify drugs after an on the record hearing. 21 USC Section 811(a). If the parties receive an adverse ruling, they can seek judicial review of the DEA’s determination in an appropriate state circuit court.

Because the plaintiffs failed to follow this administrative procedure, the Court determined that dismissal was warranted.

Precedent Requires Dismissal

Although the case was dismissed for failure to exhaust, the Judge’s order states that “[e]ven if the Court were to reach the merits of plaintiffs’ rational basis claim, I would be bound by precedent to reject it.” The Judge then notes that the Second Circuit has upheld the constitutionality of the CSA, which is binding on the Judge, as has every other court that has reviewed it.

The Judge states that “[e]ven without the benefit of precedent, it is clear that Congress has a rational basis for classifying marijuana in Schedule I, and executive officers in different administrations have consistently retained its placement there.” In other words, because of potential harm caused by cannabis consumption, it can’t be said that Congress’ initial decision to classify cannabis as Schedule I was irrational at the time.

Classification Cannot be Unconstitutional if there Remains an Administrative Option to Modify Classification

Tying back to the exhaustion of remedies issue, the Court further explains that “any constitutional rigidity is overcome by granting the Attorney General, through a designated agent [the DEA], the authority to reclassify a drug according to evidence before it and based on the [Schedule I criteria]. There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind.”

It must be incredibly frustrating for these plaintiffs, as the Judge at the hearing and in the order to dismiss recognized that cannabis has an accepted medical use. How then, can it remain as a Schedule I drug which requires a “high potential for abuse, no currently accepted medical use in treatment, and a lack of accepted safety for use of the drug under medical supervision”? Unfortunately, this Judge believes his hands are tied.

The Equal Protection Claim Based on Racial Animus was Also Dismissed

In connection with this lawsuit, the Cannabis Cultural Association (CCA), brought claims on behalf of its members that the scheduling of cannabis violates the Equal Protection Clause because it was passed with racial animus. The Judge also dismissed this claim on procedural grounds, holding that the CCA and its members did not have standing to bring this claim because a favorable decision was unlikely to redress the CCA members’ injuries, which were based on the negative effects of previous cannabis convictions. These plaintiffs failed to establish that a favorable decision would undo their prior convictions.

In looking at the merits, the Judge also found insufficient evidence that Congress originally included cannabis as a Schedule I drug because of racial animus. Although the plaintiffs pointed to numerous statements made by the Nixon administration to that effect (see here for a particularly egregious example), the Judge said that these statements would not support a finding that Congress acted with discriminatory intent.

As we said when this case was filed, “though it will be interesting to watch this lawsuit proceed, it seems unlikely it will be the vehicle that finally ends federal prohibition. Cannabis will eventually be legalized nationwide (we see that happening within five years), but it is a lot more likely to occur in voting booths than in a court.” So get out there, vote, and hold your representatives accountable. Congress has to act.