Supreme Court of the United States CANNA PROVISIONS, INC.; GYASI SELLERS; WISEACRE FARM, INC.; AND VERANO HOLDINGS CORP., Applicants, v. PAMELA J. BONDI, IN HER CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES,

 

No. 25A

In the

Supreme Court of the United States

CANNA PROVISIONS, INC.; GYASI SELLERS; WISEACRE FARM, INC.;

AND VERANO HOLDINGS CORP.,

Applicants,

v.

PAMELA J. BONDI, IN HER CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

On Application for Extension of Time

to File a Petition for Writ of Certiorari

APPLICATION FOR AN EXTENSION OF TIME TO FILE

A PETITION FOR WRIT OF CERTIORARI

Jonathan D. Schiller

Matthew L. Schwartz

DavID Barillari

55 Hudson Yards

New York, NY 10001

Joshua I. Schiller

44 Montgomery Street, 41st Floor

San Francisco, CA 94104

Boies Schiller Flexner llP

DavID Boies

Counsel of Record

333 Main Street

Armonk, NY 10504

(914) 749-8200

dboies@bsfllp.com

Counsel for Applicants

Canna Provisions, Inc.,

Gyasi Sellers, Wiseacre Farm, Inc.,

and Verano Holdings Corp.

384293

A

(800) 274-3321 • (800) 359-6859CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of this Court, Applicant Canna Provisions, Inc. is 100%

owned by Better Provisions, LLC, a Delaware Limited Liability Company. Better

Provisions LLC has no parent corporation, and no publicly held corporation owns 10%

or more of its stock. Applicant Gyasi Sellers is an individual. Applicant Wiseacre

Farm, Inc. has no parent corporation, and no publicly held corporation owns 10% or

more of its stock. Applicant Verano Holdings Corp. is a publicly held corporation with

no parent corporation, and no publicly held corporation owns 10% or more of its stock.

iTO THE HONORABLE KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE

SUPREME COURT AND CIRCUIT JUSTICE FOR THE FIRST CIRCUIT:

Pursuant to 28 U.S.C. § 2101(c) and Rules 13.5, 22, and 30 of this Court,

Applicants Canna Provisions, Inc., Gyasi Sellers, Wiseacre Farm, Inc., and Verano

Holdings Corp. (collectively, “Applicants”) respectfully request a 60-day extension, to

October 24, 2025, to file a petition for a writ of certiorari to review the judgment of

the United States Court of Appeals for the First Circuit in this case. The First Circuit

entered its judgment on May 27, 2025. App. at 2a. Absent an extension, the deadline

for filing a petition for a writ of certiorari would fall on August 25, 2025. This

application is being filed more than ten days before the petition is currently due. This

Court has jurisdiction over this matter under 28 U.S.C. § 1254(1). Before filing this

Application, Applicants’ counsel sought and received confirmation from the Office of

the Solicitor General that Respondent does not object to the requested extension.

BACKGROUND

This case challenges Congress’s authority to criminalize the intrastate

farming, possession, and sale of marijuana grown and sold entirely in Massachusetts

and which is not fungible with interstate marijuana, is readily distinguishable from

interstate marijuana, and is responsible for reducing the amount of interstate traffic

in marijuana over the last decade. In so doing, this case seeks to revisit Gonzalez v.

Raich, 545 U.S. 1 (2005), in which this Court held that Congress could—under the

Commerce Clause—ban purely intrastate marijuana.

1On October 26, 2023, Applicants filed the Complaint in this case, alleging an

as-applied challenge to the Controlled Substances Act (“CSA”), which makes it a

crime to “manufacture, distribute, or dispense” marijuana, even in purely intrastate

commerce. 21 U.S.C. § 841(a)(1). Applicants operate businesses that farm, deliver,

and sell marijuana locally in Massachusetts pursuant to Massachusetts’ strict

marijuana regulations. Their activities are legal under Massachusetts law but illegal

under the CSA.

The Complaint alleges the myriad changes that have occurred since Raich was

decided. Applicants allege that the express predicates of this Court’s Raich decision

(a comprehensive Congressional scheme to ban totally the production and sale of

marijuana, the danger that permitting intrastate production and possession would

increase interstate marijuana commerce, and the conclusion at the time that all

marijuana was fungible and that as a result intrastate and interstate products were

indistinguishable) are no longer true. Applicants also assert, as preserved below, the

claim that Raich was wrongly decided and inconsistent with this Court’s subsequent

Commerce Clause jurisprudence.

On the merits, the District Court held that Applicants’ arguments were

foreclosed by Raich: “While the Complaint has alleged persuasive reasons for a

reexamination of the way the Controlled Substances Act (‘CSA’) regulates marijuana,

the relief sought is inconsistent with binding Supreme Court precedent and,

therefore, beyond the authority of this court to grant.” App. at 24a. In granting the

Government’s motion to dismiss, the District Court noted that “the absence of judicial

2relief from this court does not leave Plaintiffs without ‘another avenue of relief.’

Plaintiffs can pursue their claims and seek the attention of the Supreme Court.” Id.

(quoting Raich, 545 U.S. at 33).1

The First Circuit affirmed, noting that Raich permits Congress to regulate

purely intrastate activities as long as “Congress could rationally conclude that an

intrastate activity would ‘substantially affect interstate commerce’ if not regulated.”

App. at 15a-16a (quoting Raich, 545 U.S. at 22).

REASONS FOR GRANTING THE EXTENSION

Applicants respectfully submit that a 60-day extension of the filing deadline is

appropriate for several reasons.

First, lead counsel for the Applicants, David Boies, has been, and is, heavily

engaged in previously scheduled matters since the First Circuit’s decision on May 27,

2025, including oral argument of Atlas Data Privacy Corp. v. We Inform, LLC,

pending in the Third Circuit Court of Appeals; oral argument of dispositive motions

in Avangrid, Inc., et al v. NextEra Energy, Inc., et al, pending in the United States

District Court for the District of Massachusetts; hearings in Delta Airlines, Inc. v.

CrowdStrike, Inc., pending in the circuit court for Fulton County, Georgia, and in

1 The District Court also concluded that Applicants have standing, both because

they face a credible threat of prosecution under the CSA and because they have

suffered economic harm that is traceable to the “risks and uncertainties the CSA

imposes on transactions with state-regulated marijuana businesses.” App. at 33a.

The Court also dismissed Applicants’ due process arguments. Id. at 36a.

3Panini America, Inc. v. Fanatics, Inc. et al, In Re: OpenAI, Inc. Copyright

Infringement Litigation, and In re: Google Digital Advertising Antitrust Litigation, all

pending in the United States District Court for the Southern District of New York;

depositions in Bulgari v. Bulgari, pending in the United States District Court for the

Southern District of New York, and EFO Laser Spine Institute, Ltd., v. Holland &

Knight, LLP, pending in the Thirteenth Judicial Circuit Court in Hillsborough

County, Florida; and a trial scheduled for August 18 in Rodriguez, et al v. Google,

LLC, pending in the Northern District of California together with related

preparation. These obligations will interfere with counsel’s ability to prepare and file

a petition that appropriately addresses the important issues in this case by August

25, 2025.

Second, counsel have heard from law professors, non-profits, state

governments, and others interested in submitting amicus briefs in these proceedings,

and several of these potential amici have expressed concern about having sufficient

time to prepare over the summer. An extension will provide potential amici adequate

time to consider the case and carefully craft their arguments.

Third, this case presents significant and complex constitutional issues

concerning both state-regulated marijuana specifically and the authority of Congress

to regulate purely intrastate commerce generally. The additional time will permit

counsel to prepare a petition that appropriately addresses the questions of

nationwide importance raised by this case, including the question of whether Raich

was correctly decided.

4Finally, Respondent will not suffer any prejudice from the requested extension.

Because the First Circuit affirmed the dismissal of Applicants’ claims, a brief

extension will not in any way alter the status quo of this case. Applicants’ counsel

contacted the Office of the Solicitor General on August 4, 2025, to inquire whether

Respondent had any objection to the requested extension. On August 8, 2025, the

Office of the Solicitor General confirmed that Respondent does not object.

CONCLUSION

For the foregoing reasons, Applicants respectfully request that an extension of

time to file a petition for a writ of certiorari be granted, extending Applicants’

deadline to October 24, 2025.

Applicants greatly appreciate the Court’s attention to this matter.

August 11, 2025 Respectfully submitted,

/s/ David Boies

BOIES SCHILLER FLEXNER LLP

DAVID BOIES

Counsel of Record

333 Main Street

Armonk, NY 10504

(914) 749-8200

dboies@bsfllp.com

Jonathan D. Schiller

Matthew L. Schwartz

David Barillari

55 Hudson Yards

New York, NY 10001

5Joshua I. Schiller

44 Montgomery Street, 41st Floor

San Francisco, CA 94104

Counsel for Applicants Canna

Provisions, Inc., Gyasi Sellers,

Wiseacre Farm, Inc., and Verano

Holdings Corp.

6APPENDIXi

TABLE OF CONTENTS

Page

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT,

FILED MAY 27, 2025  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . APPENDIX B — MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MASSACHUSETTS, FILED JULY 1, 2024  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 1a

23aUnited States Court of Appeals

For the First Circuit

No. 24-1628

CANNA PROVISIONS, INC.; GYASI SELLERS; WISEACRE FARM, INC.;

VERANO HOLDINGS CORP.,

Plaintiffs, Appellants,

v.

PAMELA J. BONDI, Attorney General*

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Barron, Chief Judge,

Montecalvo and Rikelman, Circuit Judges.

David Boies, with whom Jonathan D. Schiller, Matthew L.

Schwartz, David P.G. Barillari, Joshua I. Schiller, and Boies

Schiller Flexner LLP were on brief, for appellants.

Daniel Aguilar, Attorney, Appellate Staff, Civil Division,

U.S. Department of Justice, with whom Brian M. Boynton, Principal

Deputy Assistant Attorney General, Civil Division, U.S. Department

of Justice, Mark B. Stern, Attorney, Appellate Staff, Civil

Division, U.S. Department of Justice, and Sarah Carroll, Attorney,

Appellate Staff, Civil Division, U.S. Department of Justice, were

on brief, for appellee.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

Attorney General Pamela J. Bondi is automatically substituted for

former Attorney General Merrick B. Garland as Defendant-Appellee.

1aMay 27, 2025

2aBARRON, Chief Judge. The appellants are four businesses

that allege that they cultivate, manufacture, possess, and/or

distribute marijuana wholly within Massachusetts in full

compliance with its laws and regulations. In 2023, they sued the

Attorney General of the United States. They claimed that the

Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., "as

applied to [their] intrastate cultivation, manufacture,

possession, and distribution of marijuana pursuant to state law,"

exceeded Congress's powers under Article I of the United States

Constitution and violated the Due Process Clause of the Fifth

Amendment to the Constitution. They sought a declaratory judgment

to that effect. They also sought an injunction prohibiting the

enforcement of the CSA as to them, "in a manner that interferes

with the intrastate cultivation, manufacture, possession, and

distribution of marijuana, pursuant to state law." The District

Court dismissed the appellants' claims for failing to state a claim

on which relief could be granted. We affirm.

I.

A.

Congress enacted the CSA in 1970, as part of the

Comprehensive Drug Abuse Prevention and Control Act. Gonzales v.

Raich, 545 U.S. 1, 10-12 (2005). "The main objectives of the CSA

were to conquer drug abuse and to control the legitimate and

illegitimate traffic in controlled substances." Id. at 12. To do

- 3 -

3aregarding the manufacture, distribution, and use of the substances

listed therein." Id. at 14.

so, "Congress devised a closed regulatory system making it unlawful

to manufacture, distribute, dispense, or possess any controlled

substance except in a manner authorized by the CSA." Id. at 13

(citing 21 U.S.C. §§ 841(a)(1), 844(a)).

The CSA grouped all controlled substances into five

"schedules" based on their "accepted medical uses, the potential

for abuse, and their psychological and physical effects on the

body." Id. Each schedule imposed "a distinct set of controls

The CSA classified marijuana as a Schedule I drug, which

made "the manufacture, distribution, or possession of

marijuana . . . a criminal offense," except as authorized by the

CSA. Id. "Despite considerable efforts to reschedule marijuana,

it remains a Schedule I drug."1 Id. at 15.

on a claim that the CSA exceeded Congress's Article I powers under

the Commerce Clause and the Necessary and Proper Clause insofar as

that statute applied to possession and cultivation of marijuana

for personal medical use in compliance with state law. Id. at

7-8. In Raich, the Supreme Court of the United States ruled

There, the plaintiffs were two individuals who wished to

1 In May 2024, the Attorney General issued a notice of

proposed rulemaking that contemplates transferring marijuana from

Schedule I to Schedule III. 89 Fed. Reg. 44597 (May 21, 2024).

The administrative process remains pending.

- 4 -

4agrow and possess marijuana for personal medical use based on a

physician's recommendation in accord with a California law that,

notwithstanding the CSA, authorized such activity as a matter of

state law. Id.

Raich rejected the constitutional challenge on the

ground that Congress had a rational basis for concluding that the

failure to regulate "the intrastate cultivation and possession of

marijuana for medical purposes based on the recommendation of a

physician would substantially affect the larger interstate

marijuana market." Id. at 21-22. The Court explained that the

CSA's criminalization of the cultivation and possession of

marijuana for personal medical use in compliance with state law

was "an essential part of a larger regulatory scheme" for

regulating marijuana that the CSA establishes. Id. at 30.

Beginning roughly a decade later, however, Congress each

year has attached a rider to its annual appropriations bill. The

rider concerns the authority of the U.S. Department of Justice

with respect to state-regulated medical marijuana. It provides:

None of the funds made available under this

Act to the Department of Justice may be used,

with respect to any of [the listed states and

territories] to prevent any of them from

implementing their own laws that authorize the

use, distribution, possession, or cultivation

of medical marijuana.

Consolidated Appropriations Act, 2024, Pub. L. No. 118-42, § 531,

138 Stat. 25, 174 (2024); see also United States v. Sirois, 119

- 5 -

5aF.4th 143, 145 (1st Cir. 2024) (noting the same). This

rider -- often referred to as the "Rohrabacher-Farr

Amendment" -- "places a practical limit on federal prosecutors'

ability to enforce the CSA with respect to certain conduct

involving medical marijuana." United States v. Bilodeau, 24 F.4th

705, 709 (1st Cir. 2022). In addition, in 2010, Congress permitted

the District of Columbia to enact a medical marijuana program.

B.

In advancing their as-applied challenge to the CSA, the

appellants refer in their complaint to the post-Raich federal

legislative developments just mentioned. They also allege that,

as of the time of the complaint's filing, twenty-three states had

created regulated intrastate markets for non-medical, adult-use

marijuana. Their complaint asserts that, in consequence of these

developments, Raich's rationale for upholding the CSA against the

challenge in that case provides no basis for upholding it against

their challenge to the CSA based on Congress having exceeded its

Article I powers. Their complaint separately alleges that the CSA

is unconstitutional as applied to their activities under the Due

Process Clause of the Fifth Amendment.

The government moved to dismiss the complaint for, among

other things, "failure to state a claim upon which relief can be

granted." Fed. R. Civ. P. 12(b)(6). As to the claim based on

Article I, the government contended that "Raich's holding that the

- 6 -

6aCSA is within Congress'[s] power under the Commerce Clause and

Necessary and Proper Clause, even as applied to intrastate

marijuana activity compliant with state law, forecloses" the

challenge. As to the claim based on substantive due process, the

government argued that there is no fundamental right "to cultivate,

manufacture, possess, and distribute marijuana, subject only to

state health, safety, and public welfare regulations," and that

"the CSA easily satisfies rational basis scrutiny."

The District Court granted the government's motion. The

District Court reasoned that, because Raich held that "an

aggregation of limited, non-commercial marijuana activity"

provided a "rational basis" for Congress's conclusion that such

activity would "substantially affect interstate commerce," it was

bound by that precedent to "find the same to be true of

[p]laintiffs' larger-scale, commercial activities." It also

reasoned that "[t]here [was] simply no precedent for concluding

that [p]laintiffs enjoy a fundamental right to cultivate, process,

and distribute marijuana,

" and "[i]n the absence of a fundamental

right to engage in the cultivation, processing, and distribution

of marijuana, [p]laintiffs cannot prevail on their substantive due

process claim."

This appeal timely followed.

- 7 -

7aII.

The appellants bear the burden of demonstrating that the

CSA, as applied to their conduct, exceeds Congress's power under

the Commerce Clause and the Necessary and Proper Clause as well as

that the CSA violates the Due Process Clause of the Fifth

Amendment. See Dep't of State v. Muñoz, 602 U.S. 899, 903 (2024).

"We review de novo an order dismissing a complaint for failure to

state a claim . . . ." Lee v. Conagra Brands, Inc., 958 F.3d 70,

74 (1st Cir. 2020).

III.

The Commerce Clause of the United States Constitution

provides that "Congress shall have [the] [p]ower . . . [t]o

regulate Commerce . . . among the several States." U.S. Const.

art. I, § 8, cl. 3. The appellants do not dispute that they are

engaged in commercial activity through their cultivation,

manufacture, possession, and/or distribution of marijuana. They

nonetheless contend that this commercial activity is purely

"local" or "intrastate" in the sense that it takes place entirely

within Massachusetts. They then go on to contend that Congress's

power under the Commerce Clause and the Necessary and Proper Clause

does not extend to this activity, notwithstanding that it is

commercial in nature.

In pressing this contention, the appellants assert that

"myriad changes, both in federal legislation and the markets for

- 8 -

8amarijuana, mean that the new marijuana regime today cannot satisfy

the standard set out in Raich.

" We begin with their contention

insofar as it rests on post-Raich changes in "federal legislation."

We then consider their contention insofar as it rests on post-Raich

changes in "the markets for marijuana."

A.

In asserting that changes in federal legislation render

Raich inapposite, the appellants focus chiefly on the

Rohrabacher-Farr Amendments. They contend that those amendments

show that "Congress has abandoned its goal of controlling all

marijuana in interstate commerce" and thus that "[t]he current

regime . . . lacks the comprehensiveness that was a predicate for

Raich's upholding of the CSA." They further contend that those

amendments show that "not even Congress believes that prohibiting

state-regulated marijuana is 'essential to the effective control

of the interstate incidents' of marijuana." (Quoting Raich, 545

U.S. at 12 n.20). As a result, they contend that Raich no longer

"directly controls" because these post-Raich federal legislative

developments reveal that regulating their activity -- given that

it occurs wholly intrastate, subject to state regulatory

regimes -- is not "an essential part of the larger regulatory

scheme" for regulating marijuana that the CSA establishes.

(Quoting Raich, 545 U.S. at 27).

- 9 -

9aAs an initial matter, we observe that the

Rohrabacher-Farr Amendments are of limited scope. They restrict

the U.S. Department of Justice only from using federal funds "to

prevent any of [the listed states and territories] from

implementing their own laws that authorize the use, distribution,

or cultivation of medical marijuana." Consolidated Appropriations

Act, 2024 § 531 (emphasis added). The appellants are challenging

the CSA, however, insofar as it applies to their cultivation,

manufacture, possession, and distribution of marijuana without

regard to whether that activity is for a medical purpose. And the

appellants do not explain why, under Raich, the regulation of such

activity is not "an essential part of the larger regulatory scheme"

that the CSA establishes, even accounting for the Rohrabacher-Farr

Amendments. Raich, 545 U.S. at 27. After all, notwithstanding

those appropriation riders, the CSA remains fully intact as to the

regulation of the commercial activity involving marijuana for

non-medical purposes, which is the activity in which the

appellants, by their own account, are engaged.

It may be that the appellants mean to suggest that Raich

may not be understood to treat any legislative scheme regulating

marijuana as "comprehensive" for purposes of triggering its

"essential part" rationale unless that scheme regulates all

marijuana. But even if we were to accept that questionable

- 10 -

10apremise, it would not help the appellants, given the commercial

nature of their activity.

The Court did not suggest in Raich that Congress may

rely on its Article I powers under the Commerce Clause and the

Necessary and Proper Clause to regulate any activity involving

marijuana only as part of its regulation of all activity involving

marijuana. Instead, the Court there relied on the

comprehensiveness of the CSA's regulatory regime and the

"essential part" rationale only in the context of a challenge to

the CSA as applied to the cultivation and possession of marijuana

for personal medical use -- and thus as applied to what was in and

of itself a non-commercial activity. See id. at 18-22. The

appellants' challenge, by contrast, concerns the CSA's application

to activity that the appellants do not dispute is commercial in

nature. Yet, they identify nothing in Raich that indicates that

even when an activity that the CSA covers is commercial in nature,

its regulation must be an "essential part" of the CSA for Congress

to have the Article I power to cover that activity via the CSA.

Nor do we see anything in Raich that so indicates.2

2 The appellants' reliance on Hobby Distillers Association v.

Alcohol & Tobacco Tax & Trade Bureau, 740 F. Supp. 3d 509 (N.D.

Tex. 2024), is unavailing for the same reason. While that case

understood Raich to require "an established, comprehensive

regulatory regime," id. at 532, it did so in considering an

as-applied challenge to the regulation of non-commercial

activity -- there, "home-distilling beverage alcohol for personal

consumption," id. at 516-17.

- 11 -

11aThe other "change[] . . . in federal legislation" to

which the appellants point in challenging the ruling below based

on the "essential part" test is Congress's choice in 2010 to permit

the District of Columbia to enact laws legalizing medical marijuana

within the District. That federal legislative change, however,

also solely concerned medical marijuana. The appellants' argument

regarding this federal legislative development thus would appear

to suffer from precisely the same defects as their contentions

pertaining to the Rohrabacher-Farr Amendments. And, insofar as

the appellants mean to suggest that this federal legislative change

demonstrates some problem with the application of the CSA to their

conduct that the Rohrabacher-Farr Amendments do not, they do not

explain what that problem might be. Any such contention is

therefore waived for lack of development. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

B.

The appellants also contend that post-Raich changes in

"the markets for marijuana" mean that Congress may no longer

regulate their marijuana activity under the Commerce Clause and

Necessary and Proper Clause. Here, the appellants rely on United

States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), for the

proposition that Congress may regulate intrastate

- 12 -

12aactivities -- even those that are commercial in nature -- only if

they "in a substantial way interfere with or obstruct the exercise

of the granted power" to regulate interstate commerce, id. at 119.

The appellants contend that "there is no longer any

reason to assume that state-regulated marijuana activities 'in a

substantial way interfere with or obstruct the exercise of the

granted power' to regulate interstate commerce in marijuana,

"

(quoting United States v. Lopez, 514 U.S. 549, 556 (1995)), because

"the decades since Raich have shown Congress's former concerns

about swelling interstate traffic and enforcement difficulties can

no longer be supported." In that regard, the appellants emphasize

the allegations in their complaint that "states' medical and

adult-use marijuana programs have drastically reduced illicit

interstate and international commerce in marijuana" and that

"state-regulated marijuana products are distinguishable (from each

other and from illicit interstate marijuana) based on the labelling

and tracking requirements that states impose."

Of course, for purposes of assessing Congress's power

under the Commerce Clause and the Necessary and Proper Clause to

regulate an activity, the question that we must ask is not "whether

[appellants'] activities, taken in the aggregate, substantially

affect interstate commerce in fact." Raich, 545 U.S. at 22. The

question is "whether a 'rational basis' exists for so concluding."

Id.

- 13 -

13aIn addition, Raich held that Congress had a rational

basis for concluding that failing to regulate "the intrastate

cultivation and possession of marijuana for medical purposes based

on the recommendation of a physician would substantially affect

the larger interstate marijuana market.

" Id. at 21. And, in so

ruling, the Court explained that the activity at issue there was

not beyond Congress's reach under Article I because

[o]ne need not have a degree in economics to

understand why a nationwide exemption for the

vast quantity of marijuana . . . locally

cultivated for personal use (which presumably

would include use by friends, neighbors, and

family members) may have a substantial impact

on the interstate market for this

extraordinarily popular substance.

Id. at 28. Raich also observed that "[t]he notion that [state]

law has surgically excised a discrete activity that is hermetically

sealed off from the larger interstate marijuana market is a dubious

proposition, and, more importantly, one that Congress could have

rationally rejected." Id. at 30; see also United States v.

Nascimento, 491 F.3d 25, 42 (1st Cir. 2007) ("Raich teaches that

when Congress is addressing a problem that is legitimately within

its purview, an inquiring court should . . . . respect the level

of generality at which Congress chose to act.").

Against that backdrop, we find it significant that the

"exemption" that is being sought via the asserted limits on

Article I here would allow for more than the possession and

- 14 -

14acultivation for personal medical use of marijuana -- as was the

case in Raich itself. The "exemption" would allow for the

commercial cultivation, manufacture, possession, and distribution

of marijuana for both medical and non-medical purposes. The

appellants, in other words, are asking for a "nationwide exemption"

that is much broader than the one that Raich held Article I did

not require, both in the kinds of conduct and the "quantity of

marijuana" that would be exempted. 545 U.S. at 28.

True, the appellants allege that, as of the time of their

complaint, the availability of regulated markets for marijuana in

individual states has decreased interstate commercial activity

involving marijuana. They allege, too, that state-regulated

marijuana is distinguishable from illicit interstate marijuana.

But, as we have emphasized, the relevant question is whether

Congress could rationally conclude that an intrastate activity

would "substantially affect interstate commerce" if not regulated.

Id. at 22. And, as we have noted, in rejecting the "exemption"

sought in that case, the Court in Raich relied on the conclusion

"hermetically sealed off from the larger interstate marijuana

market," id. at 30.

that Congress could rationally conclude that a "vast quantity of

marijuana" that a state permits to be lawfully used within its

borders, id. at 28, subject to its regulation, would not remain

- 15 -

15aWe thus do not see how we could conclude that Congress

has no rational basis for similarly concluding as to the much

larger exemption sought here. There is a difference between the

factual predicate that may support a legislative choice and the

kind of factual predicate that could compel a court to impose a

constitutional limit on that choice. We thus conclude that the

appellants have failed to show that there is no rational basis for

concluding that their activity substantially affects interstate

commerce.

To the extent that the appellants may be understood to

be contending that Congress had to have made specific findings

that the intrastate cultivation, manufacture, possession, and/or

distribution of marijuana in compliance with a given state's laws

allowing for such intrastate activity would substantially affect

the larger interstate market, we are also unpersuaded. Congress

is not required to make "detailed findings proving that each

activity regulated within a comprehensive statute is essential to

the statutory scheme." Id. at 21 n.32. For that reason, the Court

rejected the analogous argument made by the appellants in Raich

that Congress had not made "a specific finding that the intrastate

cultivation and possession of marijuana for medical purposes based

on the recommendation of a physician would substantially affect

the larger interstate marijuana market." Id. at 21.

- 16 -

16aRelatedly, the appellants fault the District Court for

"refus[ing] to permit [the appellants] to prove that the CSA's

findings today are unsupported." But even they concede that "Raich

permits courts to dispense with fact finding when the connection

to Congress's interstate goals is 'visible to the naked eye.'"

(Quoting Raich, 545 U.S. at 28-29). And, for reasons we have

explained, that connection is no less "visible" here than it was

in Raich.

C.

For the foregoing reasons, we conclude that the

appellants have not plausibly alleged that the CSA's prohibition

on the "intrastate cultivation, manufacture, possession, and

distribution of marijuana pursuant to state law,

" as applied to

them, exceeds Congress's authority under the Commerce Clause and

the Necessary and Proper Clause.

IV.

The appellants separately challenge the District Court's

dismissal of their claim that the CSA is unconstitutional under

the Fifth Amendment's Due Process Clause as applied to their

intrastate commercial activity involving marijuana because "the

CSA's prohibition on state-regulated marijuana violates

Plaintiffs-Appellants' rights to cultivate and transact in

marijuana" for both medical and recreational purposes. In that

regard, the appellants contend that the "right[] to cultivate and

- 17 -

17atransact in marijuana" for such purposes is "deeply rooted in this

nation's history and its legal traditions." They further contend

that the right is "further reinforced" by "current legal trends,

which include the vast majority of the states . . . permitting the

cultivation and distribution of marijuana." We are not persuaded.

A.

The Due Process Clause of the Fifth Amendment "provides

heightened protection against government interference with certain

fundamental rights and liberty interests." Washington v.

Glucksberg, 521 U.S. 702, 720 (1997). To establish such a

fundamental right, a plaintiff must show that the asserted right

is "objectively[] 'deeply rooted in this Nation's history and

tradition,'" id. at 720-21 (quoting Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977)), and "'implicit in the concept

of ordered liberty,' such that 'neither liberty nor justice would

exist if they were sacrificed,'" id. at 721 (quoting Palko v.

Connecticut, 302 U.S. 319, 325, 326 (1937)). In addition, the

plaintiff must provide a "careful description of the asserted

fundamental liberty interest." Muñoz, 602 U.S. at 910 (quoting

Glucksberg, 521 U.S. at 721). If the plaintiff succeeds in

establishing the existence of a fundamental right, the government

"can act only by narrowly tailored means that serve a compelling

state interest." Id. "As a general matter," the Supreme Court

"has always been reluctant to expand the concept of substantive

- 18 -

18adue process because guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended." Collins v. City

of Harker Heights, 503 U.S. 115, 125 (1992).

Every circuit to have addressed similar substantive due

process claims related to the use, cultivation, or sale of

marijuana has rejected them. See United States v. Kiffer, 477

F.2d 349, 352 (2d Cir. 1973) ("[T]here is no colorable claim of a

fundamental constitutional right to sell marihuana."); United

States v. White Plume, 447 F.3d 1067, 1075 (8th Cir. 2006) (no

fundamental right to "hemp farming"); United States v. Fry, 787

F.2d 903, 905 (4th Cir. 1986) (no fundamental right to "produce or

distribute marijuana commercially"); Raich v. Gonzales, 500 F.3d

850, 864-66 (9th Cir. 2007) (no fundamental right to use medical

marijuana); Borges v. Cnty. of Mendocino, No. 22-15673, 2023 WL

2363692, at *1 (9th Cir. Mar. 6, 2023) (no fundamental right to

cultivate marijuana); see also United States v. Cannon, 36 F.4th

496, 502 (3d Cir. 2022) (per curiam) (noting, on plain error

review, that "it is certainly not 'clear under current law' that

there is any fundamental right to use medical marijuana" (quoting

United States v. Olano, 507 U.S. 725, 734 (1993))). We see no

reason to part ways with our sister circuits in addressing

appellants' as-applied challenge.

In arguing that we must, the appellants first point to

historical practices in the original colonies prior to the

- 19 -

19afounding. They argue that "[e]ach of the thirteen original

colonies enacted" laws concerning marijuana -- "then known simply

as 'hemp'" -- some of which "encouraged (or even required)"

colonists to grow marijuana. The appellants also rely on

allegations regarding marijuana use in the United States "[a]round

the [p]assage of the Fourteenth Amendment," which they say show

that "Americans were using marijuana for medicinal and

recreational purposes" at the time and that "marijuana was 'highly

valued'" at the time for these uses. Finally, the appellants

assert that English sources, including the Magna Carta,

"created . . . rights concerning hemp cultivation" and sometimes

even "made the cultivation of hemp compulsory." The sum total of

this historical evidence, the appellants contend, establishes "a

long legal tradition of recognizing the importance of marijuana

commerce" and proves that "the 20th-century movement towards

banning and criminalizing marijuana, which culminated in 1970 with

the CSA, is a historical aberration compared to the practices in

this country in the 17th, 18th, [and] 19th . . . centuries."

The appellants' reasoning would mean that there would be

a fundamental right to grow and sell any product that founding era

laws encouraged residents of that time to grow and sell. We

decline to adopt a line of reasoning that would support such

"sweeping claims of fundamental rights," Abigail All. for Better

Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 707

- 20 -

20a(D.C. Cir. 2007), particularly given that the rights in question

must be those that are "deeply rooted in this Nation's history and

tradition" and "implicit in the concept of ordered liberty,

"

Glucksberg, 521 U.S. at 721 (first quoting Moore, 431 U.S. at 503;

and then quoting Palko, 302 U.S. at 325).

B.

There remains to address only the appellants' argument

that "[t]he widespread adoption of state-regulated marijuana

programs further demonstrates the importance of marijuana

commerce." But we know of no authority -- and the appellants

identify none -- that supports the proposition that an activity

not otherwise protected as a fundamental right under the Due

Process Clause may become so protected solely because many states

have in recent times provided legislative protections for that

activity. We thus hold that the appellants have not plausibly

alleged that the CSA's prohibition on "the intrastate cultivation,

manufacture, possession, and distribution of marijuana pursuant to

state law," as applied to their activities, violates the Fifth

Amendment.

3

3 For the first time in their reply brief, the appellants

gesture at an argument that the CSA's ban on intrastate marijuana

commerce in compliance with state law would fail even rational

basis scrutiny. Insofar as they mean to make that argument, we

decline to address it. See Sparkle Hill, Inc. v. Interstate Mat

Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("Our precedent is clear: we

do not consider arguments for reversing a decision of a district

- 21 -

21aV.

For the foregoing reasons, the District Court's

dismissal of the plaintiffs-appellants' claims is affirmed.

court when the argument is not raised in a party's opening

brief."); see also United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990).

- 22 -

22aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 1 of 15

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CANNA PROVISIONS, INC.; GYASI

SELLERS; WISEACRE FARM, INC.;

VERANO HOLDINGS CORP.

Plaintiffs,

Civil Action No. 23-30113-MGM

v.

MERRICK GARLAND, in his official Capacity

as Attorney General of the United States

Defendant.

MEMORANDUM AND ORDER REGARDING

DEFENDANT’S MOTION TO DISMISS

(Dkt. No. 29)

July 1, 2024

MASTROIANNI, U.S.D.J.

I. INTRODUCTION

Almost twenty years ago, the Supreme Court declined to find that the reach of the Controlled

Substances Act, 21 U.S.C. § 801 et seq., exceeded the bounds of federal authority when applied to

noncommercial, wholly-intrastate activities involving small-scale cultivation and possession of

marijuana for personal medical use. Gonzalez v. Raich, 545 U.S. 1 (2005). The plaintiffs had argued that

Congress lacked authority under the Commerce Clause to criminalize the cultivation and possession

of marijuana that never enters the stream of commerce and is consumed in compliance with state law

and pursuant to a physician’s prescription. Despite acknowledging “the troubling facts” of the case,

the Court wrote that “[o]ur case law firmly establishes Congress’ power to regulate purely local

activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate

commerce.” Id. at 17.

23aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 2 of 15

Now, Plaintiffs, four owners of marijuana businesses that operate in Massachusetts and in

compliance with state law, have asked this court to reach a different conclusion about the limits the

Commerce Clause imposes on Congressional authority.1 Plaintiffs support their position by detailing

the extent of changed views about marijuana, state regulation, and federal enforcement since the

Supreme Court decided Raich. While the Complaint has alleged persuasive reasons for a reexamination

of the way the Controlled Substances Act (“CSA”) regulates marijuana, the relief sought is inconsistent

with binding Supreme Court precedent and, therefore, beyond the authority of this court to grant.

Plaintiffs do not provide a basis for this court to disregard the broad reading of the Commerce Clause

first announced in Wickard v. Filburn, 317 U.S. 111 (1942), and reaffirmed in Raich. See State Oil v. Kahn,

522 U.S. 3, 20 (1997) (explaining that it is the “[Supreme] Court’s prerogative alone to overrule one

of its precedents”); see also United States v. Diggins, 36 F.4th 302, 311 (1st Cir. 2022) (“We are in no

position to overrule binding Supreme Court precedent.”). Plaintiffs also argue that application of the

CSA to their activities violates their rights to substantive due process; a claim raised in Raich, but not

addressed by the Supreme Court. For the reasons that follow, this court discerns no plausible violation

of substantive due process. Plaintiffs have not identified a basis for finding a fundamental right to

engage in the cultivation and distribution of marijuana or that the CSA cannot survive rational basis

review.

Finally, and as the Supreme Court noted in Raich, the absence of judicial relief from this court

does not leave Plaintiffs without “another avenue of relief.” Raich, 545 at 33. Plaintiffs can pursue their

claims and seek the attention of the Supreme Court. They also are free to advocate for marijuana to

be reclassified or removed from the CSA.

1 Massachusetts permits marijuana to be sold to and consumed by adults for both medical and recreational purposes and

Plaintiffs serve both types of consumers. Although there may be reasons to separately assess the basis for regulating

these distinct types of consumption, neither Plaintiffs’ Complaint, nor this decision, addresses those distinctions.

2

24aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 3 of 15

II. BACKGROUND

A. The CSA and Federal Enforcement

In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act,

which contained the CSA at Title II of the Act. Raich, 545 U.S. at 10, 12. At the time, marijuana was

banned in all 50 states, subject to some limited exceptions. Leary v. U.S., 395 U.S. 6, 16-17 (1969). In

the preceding year, President Nixon had “declared a national ‘war on drugs’” and the Supreme Court

had “held certain provisions of the Marihuana Tax Act and other narcotics legislation

unconstitutional.” Raich, 545 U.S. at 10, 12. In Raich, the Supreme Court reported that “[t]he main

objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic

in controlled substances.” Id. at 12. Congress attempted to effectuate these goals by creating “a closed

regulatory system” under which it was “unlawful to manufacture, distribute, dispense, or possess any

controlled substance except in a manner authorized by the CSA.” Id. at 13. All substances were

“grouped together based on their accepted medical uses, the potential for abuse, and their

psychological and physical effects on the body.” Id. “Congress classified marijuana as a Schedule I

drug,” grouping it with other substances considered to have a “high potential for abuse, lack of any

accepted medical use, and absence of any accepted safety for use in medically supervised treatment.”

Id. at 14. The CSA makes it a federal criminal offense to manufacture, distribute, dispense, or possess

Schedule I drugs, including marijuana, except within a preapproved research study. Id. In addition, the

CSA imposes controls on the handling of the substances in all five classifications and separate federal

approval is required before a drug can be marketed for medical use. Id. at 27-28; see also 21 U.S.C. §§

321, 352.

Plaintiffs assert that marijuana has been miscategorized and, at the motion to dismiss stage,

the court accepts as true their assertions about the safety of marijuana and its therapeutic benefits.

The CSA provides a process for moving substances from one schedule to another and the Department

3

25aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 4 of 15

of Justice has commenced a process that could result in marijuana being moved from Schedule I to

Schedule III. However, at this time, marijuana continues to be listed on Schedule I and, therefore,

almost all activities that involve growing, processing, and possessing marijuana continue to be federal

crimes. This is true even though thirty-eight states have adopted programs that legalize marijuana

within a strict, state regulatory framework. Some states only permit marijuana used for medical

purposes, while other states also allow marijuana to be consumed on a non-medical or adult-use basis.

Massachusetts is one of the states that operates a highly regulated system permitting both

medical and adult-use marijuana businesses. In order to participate in the legal marijuana marketplace,

all businesses must comply with exacting local and state regulatory requirements designed to ensure

that all products containing marijuana are closely traced and that businesses operate in a manner that

is safe for their customers, employees, and the local community. Rigorous regulation seeks to ensure

that all the marijuana that moves through the legal Massachusetts market is grown, processed, and

sold within the state. The regulatory scheme also includes taxes and community impact fees that

generates significant revenue for state and local governments.

Plaintiffs have alleged there is data demonstrating that as state-regulated marijuana markets

have grown, the amount of marijuana that travels in interstate and international commerce has

declined dramatically. They assert that the federal government has responded to state-level legalization

of marijuana by abandoning the “closed regulatory system” created by the CSA. Since 2014, Congress

has included language in annual appropriations acts that prohibits the Department of Justice from

using funds to challenge state laws legalizing medical marijuana, and Congress has not interfered with

marijuana legalization programs adopted by the District of Columbia and several territories. For much

of the last decade, the Department of Justice has acted in accordance with either a formal or informal

policy not to prosecute individuals or companies under the CSA for conduct that complied with state

laws that permit intrastate possession, cultivation, and distribution of marijuana.

4

26aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 5 of 15

B. Plaintiffs

The claims in this case are asserted on behalf of four businesses openly operating in

Massachusetts in full compliance with state laws and regulations. Despite the legality of their

operations under state law, Plaintiffs have alleged that the federal criminalization of activities involving

marijuana has negatively impacted their financial viability. Plaintiffs have alleged specific injuries

suffered by each business and attributed to the criminalization of marijuana under the CSA, though

they have not quantified the monetary value of those injuries.

Canna Provisions, Inc. (“Canna”) is a Massachusetts corporation that operates a cultivation

facility and two retail, adult-use marijuana dispensaries within Massachusetts. The Complaint alleges

there are many businesses who will not work with Canna because of federal marijuana policy. Canna’s

marketing efforts have been limited because promotional companies and magazines have refused to

work with it. Many business service providers, like banks, payroll services, 401(k) providers, and

insurance companies also refuse to work with state-regulated marijuana businesses and, as a result,

Canna has had to pay “higher interest rates, insurance premiums, and payments for goods and

services.” (Compl. at ¶ 36.) Although Canna was able to accept credit cards for a period of time, credit

card processors are no longer willing to work with marijuana businesses, even those operating under

state law. When Canna lost the ability to accept credit cards, the average amount spent by customers

at Canna’s retail stores “dropped by around 30%.” (Id.) Canna has also been unable to sponsor job

training programs through a career services organization operated by Massachusetts because marijuana

is illegal under federal law. Finally, Canna has alleged that its employees and officers have had trouble

obtaining mortgages and accessing personal banking services because they earn their income in the

cannabis industry.

Gyasi Sellers (“Sellers”) is an entrepreneur who operates a state-licensed courier service for

adult-use marijuana. He is also in the process of obtaining a license to operate a marijuana retail

5

27aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 6 of 15

delivery service. Like Canna, the business operated by Sellers is not able to accept credit cards because

credit card processors will not work with marijuana businesses. The inability to accept credit cards has

created economic and security risks for his business. Sellers’s customers cannot prepay for their orders

and the drivers he employs must interact directly with customers to collect payments. Federal rules

regarding marijuana also prevent him from making deliveries to the homes of clients who live in

federally-funded housing. Finally, Sellers has been unable to access financial assistance for his business

from the Small Business Administration because marijuana businesses, even those which comply with

state law, are ineligible for SBA assistance.

Wiseacre Farm, Inc. (“Wiseacre”) is a Massachusetts corporation licensed by Massachusetts to

cultivate marijuana on its outdoor farm. Payroll processors, insurers, and banks have all refused to

work with Wiseacre because its income is derived from the cultivation of marijuana, which is illegal

under federal law. This has increased the operational costs and risks for Wiseacre, which must pay its

employees by checks and work with banks who charge Wiseacre additional fees because it is a

marijuana business. Wiseacre has also lost an opportunity to grow its operation because it was unable

to lease land from another farm because Wiseacre’s marijuana cultivation on a portion of the farm’s

land would have disqualified the entire farm from receiving any federal assistance.

Finally, Verano Holdings Corp. (“Verano”) is a Canadian corporation with subsidiaries in

several states. In Massachusetts, Verano’s wholly-owned subsidiaries operate cultivation and

manufacturing facilities and medical and adult-use dispensaries. Like Canna and Sellers, Verano is not

able to accept credit cards. Verano is only able to work with a limited group of business service

providers because its business is illegal under federal law. Although Verano has been able to obtain

insurance, it pays higher insurance premiums than it would if its business were legal under federal law.

6

28aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 7 of 15

III. ANALYSIS

A. Standing

This court’s “judicial power is limited by Article III of the Constitution to actual cases and

controversies” involving plaintiffs who have standing to sue. Kerin v. Titeflex Corp., 770 F.3d 978, 981

(1st Cir. 2014). “Standing is ‘built on a single basic idea—the idea of separation of powers.’” FDA v.

Alliance for Hippocratic Medicine, 602 U.S. __, 144 S. Ct. 1540, 1545 (2024). “The requirement that the

plaintiff possess a personal stake helps ensure that courts decide litigants’ legal rights in specific cases,

as Article III requires, and that courts do not opine on legal issues in response to citizens who might

‘roam the country in search of governmental wrongdoing.’” Id. at 1554-55 (quoting Valley Forge

Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 487 (1982)). “‘Our

system of government leaves many crucial decisions to the political processes,’ where democratic

debate can occur and a wide variety of interests and views can be weighed.” Id. at 1555 (quoting

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)). The standing requirement is one

of several tools that play an important, though not exclusive, role in preventing courts from

inadvertently usurping those political processes. Id.

Since this court must be assured of its jurisdiction before reaching the merits of Plaintiffs’

claims, the court turns first to Defendant’s arguments that Plaintiffs lack standing. Dantzler, Inc. v.

Empresas Berríos Inventory & Operations, Inc., 958 F.3d 38, 46 (1st Cir. 2020). Although the government

is the moving party, Plaintiffs, “as the party invoking federal jurisdiction,” bear the burden of

establishing that they have standing to bring their claims in this court. Spokeo, Inc. v. Robins, 578 U.S.

330, 338 (2016). “There are two types of challenges to a court’s subject matter jurisdiction: facial

challenges and factual challenges.” Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir.

2007). As the government has raised only a facial challenge to standing, the court accepts as true the

factual allegations in the Complaint and draws all reasonable inferences favorable to Plaintiffs. Katz v.

7

29aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 8 of 15

Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012). Thus, to meet their burden, Plaintiffs “must sufficiently

plead three elements: injury in fact, traceability, and redressability.” Kerin, 770 F.3d at 981. Defendant

challenges the sufficiency of Plaintiffs’ allegations to establish an injury in fact and that any such injury

is traceable to the CSA.

1. Injury in Fact

Plaintiffs have alleged two types of injuries: economic harms and threat of prosecution.

Defendant concedes that the economic harms alleged by Plaintiffs constitute an injury in fact, though

it disputes that any such injuries are traceable to portions of the CSA challenged by Plaintiffs. On the

other hand, Defendant contends that Plaintiffs’ factual allegations about the significant changes to

cultural and governmental views and policies regarding marijuana are inconsistent with their assertion

of facing a threat of prosecution sufficient to constitute an injury in fact.

“For an injury in fact to be plausibly pled, it ‘must be both concrete and particularized and

actual or imminent, not conjectural or hypothetical.’” DiCroce v. McNeil Nutritionals, LLC, 82 F.4th 35,

39 (1st Cir. 2023) (quoting Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016)). An injury

is concrete if it “actually exists” and particular if it was caused by the defendant and the plaintiff was

injured. Id. (internal quotations omitted). “In certain circumstances, ‘the threatened enforcement of a

law’ may suffice as an ‘imminent’ Article III injury in fact.” Reddy v. Foster, 845 F.3d 493, 500 (1st Cir.

2017). A pre-enforcement threat of future injury is sufficient to establish an injury in fact when a

plaintiff “alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional

interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder.’” Susan

B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298

(1979)).

8

30aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 9 of 15

In their Complaint, Plaintiffs allege that they are engaging in the intrastate cultivation,

manufacture, possession, and distribution of marijuana. Since that conduct is clearly illegal under the

CSA, even when permitted under Massachusetts law, federal prosecutors have a legal basis for

prosecuting them. The question this court must answer is whether that threat of prosecution is credible

or too remote and speculative. Reddy, 845 F.3d at 500. Citing Reddy, Defendant contends Plaintiffs’

own allegations about the significant changes in federal policy erode the theoretical threat of

enforcement down to the level of mere conjecture. Reddy, 845 F.3d at 500 (ruling a threat of

prosecution was not sufficiently imminent to satisfy the Article III injury-in-fact requirement where

preconditions to enforcement had not yet occurred).

Notwithstanding the informal policy described by Plaintiffs, Defendant “has not disclaimed

any intention ever to enforce [the CSA]” against persons like Plaintiffs. N.H. Right to Life PAC v.

Gardner, 99 F.3d 8, 17 (1st Cir. 1996). Unlike the plaintiffs in Reddy, who faced no risk of criminal

prosecution for their intended conduct and could not even face civil enforcement until after a specific

buffer zone was defined and marked, Plaintiffs have already engaged in conduct proscribed by the

CSA, a statute containing many provisions that continue to be actively enforced. A voluntary exercise

of prosecutorial discretion applied to one type of violation does not neutralize the otherwise credible

threat of prosecution that exists whenever a valid statute has been violated. Gardner, 99 F.3d at 15

(explaining that a threat of enforcement can be sufficient to establish standing “even though the

official charged with enforcement responsibilities has not taken any enforcement action against the

plaintiff and does not presently intend to take any such action”).

2. Traceability

The court next considers whether Plaintiffs’ Complaint sufficiently alleges that either the threat

of prosecution or the economic injuries they identify are traceable to the challenged portions of the

9

31aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 10 of 15

CSA. See Dep’t of Educ. v. Brown, 600 U.S. 551, 561 (2023). An injury is “fairly traceable” if there is “‘a

causal connection between the injury and the conduct complained of.’” Id. (quoting Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992)). There is a direct, causal connection between the threat of

prosecution Plaintiffs face and the challenged portions of the CSA. Plaintiffs have alleged they

variously engage in the cultivation, manufacture, distribution, and possession of marijuana, wholly

within Massachusetts and the CSA makes such activity a federal crime. In the absence of any dispute

regarding redressability, the court finds Plaintiffs have demonstrated that they have standing under

Article III to challenge the portions of the CSA applicable to intrastate activities related to marijuana.

See FDA, 144 S. Ct. at 1556 (“Government regulations that require or forbid some action by the

plaintiff almost invariably satisfy both the injury in fact and causation requirements. So in those cases,

standing is usually easy to establish.”).

The court also finds Plaintiffs have shown there is a causal connection between their economic

injuries and the CSA. “The requirement that an alleged injury be fairly traceable to the defendant’s

action does not mean that the defendant’s action must be the final link in the chain of events leading

up to the alleged harm.” Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 45 (1st Cir. 2005). On

the other hand, “the ‘line of causation . . . must not be too speculative or too attenuated.” FDA, 144

S. Ct. at 1557. Courts must use care in determining whether the causal chain is strong enough to

sustain standing despite independent actions by third parties. Dantzler, 958 F.3d at 47-48. “[T]he fact

that the deleterious effect of a statute is indirect will not by itself defeat standing.” Wine & Spirits

Retailers, Inc., 418 F.3d at 45. However, “the plaintiff must show that the ‘third parties will likely react

in predictable ways’ that in turn will likely injure the plaintiffs.” FDA, 144 S. Ct. at 1557.

When credited, Plaintiffs’ detailed allegations about their financial injuries meet that burden.

Though individual decisions by specific third parties are the final link in the causal chain, the economic

injury actually flows from the multitude of similar decisions made by many third parties, all responding

10

32aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 11 of 15

to the CSA. In the aggregate, the decisions have caused a predictable “downstream injury to plaintiffs”

by dramatically reducing their options for obtaining business services compared to the options

available to non-marijuana businesses. Id. Though the third-party decisions are not directly compelled

by the CSA, they are all foreseeable responses to the risks and uncertainties the CSA imposes on

transactions with state-regulated marijuana businesses and, together, they inflict a common injury on

Plaintiffs. See id. at 1557-58. For these reasons, the court finds the Plaintiffs’ economic injuries provide

an additional basis for standing.

B. Failure to State a Claim

The court turns to the government’s arguments that this Complaint should be dismissed “for

failure to state claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)); Fed. R. Civ. P. 12(b)(6). “Determining whether a complaint

states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id. at 679. The court accepts all well-pleaded

factual allegations and draws all reasonable inferences in Plaintiff’s favor, but “do[es] not credit legal

labels or conclusory statements.” Cheng v. Neumann, 51 F.4th 438, 443 (1st Cir. 2022). Dismissal is

appropriate if the complaint fails to establish at least one “material element necessary to sustain

recovery under some actionable legal theory.” N.R. by and through S.R. v. Raytheon Co., 24 F.4th 740,

746 (1st Cir. 2022) (internal quotations omitted). A legal theory is actionable to the extent it does not

conflict with binding precedent. See Lyman v. Baker, 954 F.3d 351, 370 (1st Cir. 2020) (affirming

dismissal of claim foreclosed by controlling case). Defendant argues Plaintiffs’ Complaint provides an

insufficient basis for this court to find the CSA, as applied to Plaintiffs, either exceeds the authority

11

33aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 12 of 15

Congress has under the Commerce Clause and Necessary and Proper Clause or violates Plaintiffs’

rights to due process under the Fifth Amendment. The court addresses each argument in turn.

1. Commerce Clause

“In our federal system, the National Government possesses only limited powers,” which do

not include the power to criminalize an “act committed wholly within a State” unless the act has “some

relation to the execution of a power of Congress, or to some matter within the jurisdiction of the

United States.” Bond v. United States, 572 U.S. 844, 854 (2014) (internal quotation omitted). Article I,

§ 8, of the Constitution vests Congress with authority “‘[t]o make all Laws which shall be necessary

and proper for carrying into Execution’ its authority to ‘regulate Commerce with foreign Nations, and

among the several states.’” Raich, 545 U.S. at 5 (quoting Art. 1, § 8). In Raich, the Supreme Court

reaffirmed the already well-established view that the authority Congress enjoys under the Commerce

Clause permits the regulation of local, non-commercial activity, if there is a rational basis from which

Congress could have concluded that such activity would substantially affect interstate commerce. Id.

at 22. More specifically, the Supreme Court held that “[t]he CSA is a valid exercise of federal power,

even as applied to” the Raich plaintiffs because Congress had a rational basis for concluding that even

their limited, non-commercial cultivation and use of marijuana, if “taken in the aggregate” could

“substantially affect interstate commerce.” Id. Notably, the Supreme Court deferred to the legislative

process by inquiring only whether Congress could rationally conclude the plaintiffs’ conduct had a

substantial affect on interstate commerce, rather than whether the plaintiffs could prove that it did

not. Id.

This court must apply the same analytic framework in this case because Plaintiffs’ Commerce

Clause claim is legally identical to the claim in Raich. See Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,

490 U.S. 477, 484 (1989) (explaining that only the Supreme Court can overrule its own decisions and

12

34aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 13 of 15

lower courts must apply a precedent with direct application, even if there is a basis for believing the

precedent has been undermined by later developments). As in Raich, the question this court must

answer is not whether, as a factual matter, Plaintiffs’ activities substantially affect interstate commerce,

but simply whether Congress had a rational basis to so conclude. Raich, 545 U.S. at 22. Since Congress

is not required “to legislate with scientific exactitude,” conflicts between actual data about how state-

sanctioned intrastate marijuana markets interact with the illicit interstate marijuana market and

congressional findings, or an absence of relevant findings, do not establish that Congress lacked a

rational basis for using the CSA to criminalize the type of conduct alleged by Plaintiffs. Id. at 17.

Logically, if, as the Supreme Court found in Raich, an aggregation of limited, non-commercial

marijuana activity provided that rational basis, this court must find the same to be true of Plaintiffs’

larger-scale, commercial activities. See Ne. Patients Grp. v. United Cannabis Patients and Caregivers of Me.,

45 F. 4th 542, 547 (1st Cir. 2022) (noting that an intrastate medical marijuana market that welcomes

customers from other states is part of a larger, interstate medical marijuana market). As Plaintiffs’ own

allegations demonstrate, they operate on a scale that far exceeds the activities at issue in Raich and

Wickard. Their businesses, together with other Massachusetts marijuana businesses, necessarily impact

interstate commerce in ways that would only increase were they to obtain the relief they seek. They

consume utilities and supplies; utilize the internet and a variety of business services; recruit and train

employees; and serve consumers, including individuals who travel from other states to obtain

marijuana in Massachusetts.

Given the scale of Plaintiffs’ operations, the court cannot find Congress lacks a rational basis

for concluding Plaintiffs’ activities substantially affect interstate commerce without ignoring the

Supreme Court’s broadly-worded holding in Raich. To reach a different outcome would require this

court to independently determine that the underlying analysis in Raich cannot survive the

developments in intrastate regulatory schemes and federal enforcement policy alleged by Plaintiffs.

13

35aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 14 of 15

Since only the Supreme Court can overrule Raich, this court concludes that Congress has authority

under the Commerce Clause to regulate Plaintiffs’ wholly-intrastate, state-sanctioned marijuana

activities and dismisses their as-applied challenge to the CSA. Plaintiffs’ argument, that the factual

differences between their allegations and those considered in Raich simply permit this court to avoid

application of Raich and substitute its own Commerce Clause analysis, has no realistic persuasive force.

2. Substantive Due Process

Plaintiffs’ substantive due process challenge to the CSA is also dismissed for failure to state a

claim. There is simply no precedent for concluding that Plaintiffs enjoy a fundamental right to

cultivate, process, and distribute marijuana. No such right is enumerated in the Constitution and, on

remand following Raich, a sympathetic Ninth Circuit concluded there was no unenumerated right to

use marijuana for medical purposes and the issue “remain[ed] in ‘the arena of public debate and

legislative action.’” Raich v. Gonzalez (“Raich Remand”), 500 F.3d 850, 866 (9th Cir. 2007) (quoting

Washington v. Glucksberg, 521 U.S. 702, 720 (2007)). The Ninth Circuit acknowledged that positive views

about the medical uses for marijuana had been growing, but explained “that legal recognition has not

yet reached the point where a conclusion can be drawn that the right to use medical marijuana is

‘fundamental’ and ‘implicit in the concept of ordered liberty.’” Id. Although many more states have

since legalized marijuana, for both medical purposes and adult use, there is still no national consensus

on this issue. Even if there were universally applicable laws permitting the cultivation, processing, and

distribution of marijuana, legalization alone neither requires nor permits this court to recognize a

fundamental right to engage in such conduct. See e.g. Dobbs v. Jackson Women’s Health Organization, 597

U.S. 215, 256-57 (2022) (ruling there is no fundamental right to obtain an abortion, despite fifty years

of federal caselaw legalizing abortion and recognizing such a fundamental right). In the absence of a

fundamental right to engage in the cultivation, processing, and distribution of marijuana, Plaintiffs

14

36aCase 3:23-cv-30113-MGM Document 47 Filed 07/01/24 Page 15 of 15

cannot prevail on their substantive due process claim. See Hernández-Gotay v. United States, 985 F.3d 71,

81 (1st Cir. 2021) (rejecting procedural and substantive due process challenges to a federal statute

outlawing cock fighting where the statute did not infringe any cognizable liberty interest and had

survived a Commerce Clause challenge).

IV. CONCLUSION

For the foregoing reasons, the Defendant’s Motion to Dismiss (Dkt. No. 29) is ALLOWED

and this case may now be closed.

It is So Ordered.

_/s/ Mark G. Mastroianni________

MARK G. MASTROIANNI

United States District Judge

15

37a