Here’s the intro to his piece
Friends, back in May 2023, we talked about whether it’s a good idea to sue the federal government over cannabis:
My response is … usually something like “Sure, anyone can file a lawsuit, but it’s almost certainly an expensively bad idea, and, by the way, that’s not legal advice.”
We looked at some failed cases and I quoted a Yiddishism illustrating the utter pointless of the endeavor. So, it should come as no surprise to readers of these Cannabis Musings that the U.S. Court of Appeals for the Sixth Circuit recently denied yet another attack on 280E. The defendant, guilty of tax crimes, argued on appeal that Congress “lacks the constitutional authority to regulate marijuana and that its tax laws impose an unconstitutional “penalty” on marijuana sales.”
The Sixth Circuit made short shrift of the defendant’s arguments, apparently so blasé that it included a header blaring “NOT RECOMMENDED FOR PUBLICATION.” What’s worth noting is the court’s commentary on Gonzales v. Raich, the Supreme Court case that’s at the heart of the Canna Provisions litigation. We’ve talked about Canna Provisions before, the effort to get the Supreme Court to effectively overturn its 2005 decision in Raich by arguing that the Controlled Substances Act should no longer apply to intrastate cannabis commerce because federal policy towards cannabis has changed over the past two decades.
One of the hooks upon which Canna Provisions hangs its proverbial hat is some non-binding commentary (condescendingly referred to by lawyers as “dicta”) in a 2021 case by Justice Thomas dissenting from a denial of appeal (which is about as dicta as you can get) that “[w]hatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning.” Ever since Justice Thomas wrote those words, cannabis lawyers have understandably loved to cite them like a Talmudic scholar cites Rashi.
Read the rest at
https://cannabismusings.substack.com/p/cannabis-musings-february-4-2025
