Challenging Cannabis Prohibition: Lawyer Behind Same-Sex Marriage Takes On Federal Policy, Citing Justice Thomas’ Critique
“The signs are all pointing in the right direction. Let’s just hope the speed picks up,” says Josh Schiller, a partner at Boies Schiller Flexner, speaking about the progression of a Massachusetts-based lawsuit that could reshape the cannabis industry. The case challenges the federal government’s enforcement of the Controlled Substances Act (CSA) against state-legal cannabis businesses, arguing that the federal approach violates constitutional principles.
At the center of the lawsuit is Justice Clarence Thomas’ critique of federal cannabis policy. In 2021, Thomas called the federal government’s stance “half in, half out,” highlighting its contradictory approach to state-legal cannabis markets. Schiller’s team argues that these contradictions undermine the rationale of the Supreme Court’s 2005 decision in Gonzales v. Raich, which upheld federal authority under the Commerce Clause.
A New Era Of Legal Challenges
Filed in Massachusetts, the case seeks to address what Schiller describes as a fundamental shift in federal cannabis policy. In Raich, the federal government successfully argued that a consistent national prohibition was necessary to combat the illicit market. However, Schiller points to subsequent federal …