Last year, attorneys from the National Organization for the Reformation of Marijuana Laws filed a federal lawsuit challenging the Department of Justice’s crackdown on the California medical marijuana industry. Though I support efforts at checking federal law enforcement over-reach, this lawsuit is so inept that I thought it was worth writing about. First, here’s the link to yesterday’s story on the NORML blog about the latest dismissal of the case. You should read it if you are not already familiar with the case.
I want to make a few points. First, NORML’s attorneys base the entirety of their lawsuit on the claim that the Ogden memo somehow represents a promise or a statement made in court to a federal judge. However, the Ogden memo is literally just a memo that the DOJ released, and was never, so far as I know, represented in a federal court as a promise or a statement that the judiciary can hold the DOJ to. For NORML to make this claim flies in the face of reason. No wonder the judge dismissed this claim without a hearing. There was nothing to hear.
Second, the NORML claim is laughably spurious in attempting to relitigate the Commerce Clause issues the Supreme Court decided in Raich v. Gonzales (2006). NORML basically says “We know the Supreme Court decided this question already, but can you please check and see if they got it wrong?” Aside from being a completely wrong way to get the court to re-evaluate a decision, it is lazy, because there NORML makes NO argument as to why this question should be relitigated. No new constitutional claim, no spiffy new
argument, zilch. NORML’s claim is literally just a claim without warrant. Also, NORML’s lawyers seem completely unaware of the impact of the Bond v. US line of cases and the implications that this decision might have forsuch a challenge to the federal authority (tip: you might want to incorporate Bond).
If you were really interested in relitigating Raich, you would file an amicus brief in the Supreme Court litigation scheduled for this month against Obama’s Affordable Care Act, because that is where we can get the Supreme Court to meaningfully restrict Congress’s Commerce Clause powers in a way that would lay the foundation for challenging the constitutionality of the Controlled Substances Act. However, I have yet to hear NORML whisper a word about this topic.
There are other problems with this lawsuit, but those are the worst. I want to state plainly that it is intellectually dishonest for NORML to claim that a judge ruled that the federal crackdown is unconstitutional. What the judge actually did was dismiss a lawsuit that was so facially deficient that it didn’t warrant the court’s time for a hearing. NORML should not
promote its lawsuit as a legitimate, viable claim against the federal crackdown either. It’s dishonest and misleading to ordinary laypeople who don’t know the difference.
What’s the takeaway? For someone like me who supports marijuana reform, it is that Paul Armentano and the NORML media wing are not reliable sources of information, particularly about their own lawsuits and legal capabilities. They either don’t have the ability to correctly judge these issues, or they’re willing to dishonestly present a false narrative to the people who support and fund their organization. Neither possibility should be comforting.
A 2L from Thomas Cooley could write a better lawsuit. Seriously.
Ducks and Economics 