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Cannabis Legal Report – Week of September 5, 2022


Cannabis: In Focus

  • Second Circuit Affirms Rational Basis to Classify Cannabis as Schedule I Substance
  • Eighth Circuit Blocks Medical Cannabis Ballot Measure

Second Circuit Rules That Cannabis As a Schedule I Under CSA Is Constitutional

This August, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s ruling that the government’s classification of cannabis as a Schedule I substance under the Controlled Substances Act (CSA) does not violate the Fifth Amendment due process and equal protection rights.

Defendant-appellants Alexander and Charles Green were charged with conspiracy to possess with intent to distribute cannabis in violation of federal law. The defendants argued that their equal protection and due process rights were violated, claiming that a Schedule I substance cannot have any “accepted medical use to be listed” under the CSA. Because there is a medical use of cannabis, the pair contended it was irrational to conclude that cannabis remains a Schedule I substance under the CSA, and it is irrational to conclude that there is no medical use for cannabis. 

The Second Circuit held that the proper standard of review is whether Congress had “any conceivable basis that might support the classification” of cannabis as a Schedule I substance under the CSA. Applying a rational basis review, the panel concluded that Congress had plausible basis to classify cannabis under Schedule I and dismissed the defendant-appellants’ challenge to their conviction.

Eighth Circuit Blocks Ballot Measure on Medical Cannabis

On August 31, the U.S. Court of Appeals for the Eighth Circuit blocked a ballot measure regarding medical cannabis in Nebraska. Nebraskans for Medical Marijuana (NMM) filed suit aiming to bar the Nebraska secretary of state from enforcing a provision in the state’s constitution requiring that ballot measures obtain supporting signatures from at least 5% of registered voters in two-fifths of the state’s counties. Nebraska officials announced that the measure did not meet the qualifications and would not appear on the November ballot. The federal district court granted NMM a preliminary injunction setting aside state officials’ determination.

NMM argued that it was unconstitutional to allow sparsely populated counties to hold such significant power. With nearly half of the state’s population living in only two counties, and a dozen other counties having fewer than 1,000 residents, NMM argued that the signatures should be assessed across the state equally. The appellate panel ruled that the plaintiffs failed to show that the signature requirement violated their rights, reversed the district court, and vacated the preliminary injunction.


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