By: Timothy P. Flynn

This case, Americans for Safe Access vs USDEA, has been percolating through the federal court system for more than a decade.  Now that the Court of Appeals for the DC Circuit declined to reclassify marijuana as a Schedule 1 drug [i.e. high potential for abuse with no verified medical benefits], the pot lobby has filed a petition for a writ of certiorari with the SCOTUS.

As readers of the Law Blogger are aware, one of the chief tensions between states that have legalized marijuana or have approved initiatives for medical marijuana, has been the persistent and long-standing classification of marijuana as a Schedule 1 drug in the federal Controlled Substances Act.

The DEA's response to the pot lobby's petition for cert is due mid-August.  This case will hopefully be taken-up by SCOTUS and decided on the merits.  That way, those in the pot growing industry will know where they stand.  Other the other hand, many legal scholars would argue that it is not for the justices to legislate but rather, that is the job of the Legislature.

Even if marijuana remains on Schedule 1 at the conclusion of this epic litigation, it nevertheless appears that plenty of entrepreneurs will continue risking their time, money and even their freedom to grow and distribute pot.

Perhaps the basic economic laws of supply and demand are among the strongest and most enduring of all.  Apparently, there is an unlimited demand for marijuana out there on Main Street and a healthy supply of folks willing to satisfy that demand.

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This past August, I was fortunate to have some business in the Greater Los Angeles area.  I was amazed at how many medical marijuana shops were open for business along Hollywood Blvd. and Sunset.  Even though California's big outright legalization initiative failed in 2010 [the medical pot lobby crushed it], marijuana is all-but-legal in Cali.

This week, Mexico, the biggest illegal supplier of pot to the U.S. market, is reportedly taking a very close look at three other Western states seeking to legalize marijuana outright through ballot initiatives on Tuesday: Oregon, Washington and Colorado.  According to The Economist, these initiatives have a very  good chance to pass in Colorado and Washington, while Oregon is considered a "long shot".

A long-standing argument for legalization is that it would put the drug cartels South of the boarder out of business to the extent that America could supply its own stash.  The past three Mexican presidents have all stated publicly that legalization in the U.S. would have the greatest effect on dismantling these vicious criminal gangs.

Marijuana produced by skilled Gringo horticulturalists, the argument goes, is of better quality and is cheaper to produce, than the Mexican import.  Also, it could be taxed like cigarettes to produce much-needed government revenue.

We here at the Law Blogger wonder if it is not indeed time to consider whether a policy change on this issue is due.  The three-decade policy of drug war eradication has been a prolonged costly failure.

Drug trade policy is one thing; federal law is another.  Any significant change in this direction would require that simple marijuana use and possession be removed from the list of federal drug crimes by Congress.  That is going to take some big-time lobbying.

In this regard, a California pot lobby, Americans for Safe Access, has convinced the powerful D.C. Circuit Court of Appeals to take a look at the science of marijuana in its case against the Drug Enforcement Agency.  Appellate oral arguments were heard in mid-October; the panel assigned to decide the case ordered additional briefings from the pot lobbyists and the DEA immediately following arguments.

The opinion, which could have a significant impact on the federal marijuana laws, is expected from the intermediate federal appellate court in a few months, and will be SCOTUS-bound thereafter.  We will continue to keep you advised on this landmark drug case; in the meantime, let's see what happens on Tuesday.

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