Federal agencies tasked with border security are contesting a lawsuit from New Mexico marijuana businesses that have had their state-legal products and other assets seized—arguing that, because cannabis is a Schedule I drug under federal law, it can be “summarily” taken.
But that might not be the case if marijuana was moved to Schedule III, the the U.S. Department of Homeland Security (DHS) and Customs and Border Protection (CBP) suggested in a new federal court filing.
As a proposal to federally reschedule cannabis sits in limbo—with administrative hearings on the Biden administration-initiated reform effort delayed at the Drug Enforcement Administration (DEA)—the agencies indicated that the potential policy change could impact their own forfeiture authorities.
In a memorandum submitted to the U.S. District Court for the District of New Mexico on Friday, DHS and CBP expanded on several previously voiced arguments on why the judge should support their motion to have the underlying lawsuit dismissed, challenging the idea that the marijuana-related seizures from state-licensed cannabis businesses is unconstitutional.
As they previously emphasized, marijuana remains a Schedule I drug under the Controlled Substances Act (CSA), and so seizing the property at border checkpoints within New Mexico is consistent with federal law, regardless of the state’s decision to legalize cannabis.
“It is beyond dispute that the Controlled Substances Act is a valid exercise of Congress’s authority under the Commerce Clause” of the U.S. Constitution, it says.
It acknowledged that DEA is currently considering rescheduling. However, since “no reclassification has occurred to date, marijuana remains a Schedule I controlled substance.”
Notably, the memorandum suggested that the forfeiture process would be different if cannabis was classified as a Schedule III drug or lower.
“In contrast with Schedule I and Schedule II controlled substances, forfeiting most types of seized property requires compliance with additional procedures to ensure that property owners are afforded due process,” DHS and CBP said.
“To effectuate an administrative forfeiture of other property—i.e. property that is not a Schedule I or Schedule II controlled substance—the Government must comply with the procedures established by [the Civil Asset Forfeiture Reform Act, or CAFRA], which…generally entail giving interested parties notice that their property has been seized and an opportunity to contest its forfeiture,” they said.
In other words, the filing seems to acknowledge that while the businesses behind the lawsuit currently lack standing under federal statute to contest the summary seizure of their cannabis products, they would otherwise be entitled to certain avenues for notice, appeal and relief if marijuana wasn’t a Schedule I or Schedule II drug.
Here’s the language of the CAFRA regulation the agencies appear to be citing:
“The Controlled Substances Act provides that all controlled substances in Schedule I and Schedule II that are possessed, transferred, sold or offered for sale in violation of the Act will be deemed contraband, seized and summarily forfeited to the United States.”
The new memorandum filed in federal court last week further disputes the plaintiffs’ argument that New Mexico marijuana businesses are being discriminatorily targeted, with seizures of state-legal products occurring more frequently in the state compared to others that have legalized cannabis and share the U.S.-Mexico border such as Arizona and California.
DHS and CBP said “Plaintiffs fail to allege any facts in support of that claim—let alone facts from which the Court could find it plausible that enforcing the federal drug laws against Plaintiffs is irrational and wholly arbitrary.”
“Plaintiffs argue that enforcing the Controlled Substances Act against them also violates the equal protection component of the Fifth Amendment’s Due Process Clause. They contend that the CBP does not summarily seize marijuana and related property from “similarly situated” state-legal marijuana businesses in Arizona and California. Even assuming the allegations in the Complaint are true, Plaintiffs have failed to plausibly allege that the Government action here fails rational basis review.”
“At the outset, Plaintiffs’ conclusory assertion that the Federal Government does not enforce the CSA in Arizona and California is wholly unsupported,” they said, adding that the cannabis businesses “have failed to identify any state-legal cannabis businesses in those states—let alone such businesses that are similarly situated to, yet treated differently from, Plaintiffs.”
“Their claim is especially implausible given that Border Patrol Agents in every jurisdiction operate pursuant to the same statutes and policies. And the Court may take judicial notice of publicly available statistics showing that Border Patrol Agents in Arizona and California do indeed seize marijuana there, further undermining Plaintiffs’ claims.”
Yet even by the agencies’ admission, the statistics about cannabis seizures in other legal states “do not distinguish between ‘state-legal’ and ‘illegal’ marijuana.
“CBP does not make such a distinction because all marijuana is illegal under federal law,” they said. “For those reasons, Plaintiffs have failed to plausibly allege that they were treated differently from other similarly situated entities.”
In both the original motion to dismiss and this latest memorandum, CBP also made a series of more nuanced challenges to certain allegations, including plaintiffs’ complaint about the seizure of non-cannabis assets such as cash and vehicles they used to transport the marijuana. The agency said the vehicle issue was moot because they were returned before the lawsuit was filed, for example.
The government has also contested plaintiffs’ argument that the federal government’s “hands-off” approach to state-level marijuana reform was relevant to the case at hand. The agencies simply said that, regardless of past DOJ and Treasury Department guidance or informal policy precedent, there’s nothing currently codified in law that bars DHS and CBP from continuing to enforce federal prohibition.
The controversy over the CBP seizures had caught the attention of certain congressional lawmakers. For example, Rep. Gabe Vasquez (D-NM) sought to amend appropriations legislation covering DHS by explicitly preventing U.S. border patrol agents from using funds to seize marijuana from state-licensed businesses.
Last April, New Mexico Gov. Michelle Lujan Grisham (D) could be heard saying on a leaked recording that she was “offended” when the secretary of the DHS reacted to her concern about the recent surge in CBP seizures of marijuana from legal operators in her state by saying, “Who cares? They make a lot of money.”
The governor also said on the call that CBP officials are trying to justify the interdictions of marijuana from state-legal businesses at interior checkpoints, primarily around the Las Cruces area, as a necessary consequence of seizing illicit fentanyl. However, as industry stakeholders have pointed out, the spike in cannabis seizures seems to be largely isolated to New Mexico, even though other states like Arizona and California also have legal cannabis operators near the Mexico border.
—
Marijuana Moment is tracking hundreds of cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
—
Beginning last year, the agency seemed to take a more proactive approach to enforcing federal prohibition, taking hundreds of pounds of cannabis at the checkpoints inside the state. CBP is able to carry out its activities within 100 miles of the U.S. border.
“Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law, given the classification of marijuana as a Schedule I controlled substance,” a CBP spokesperson told Marijuana Moment last year. ”Consequently, individuals violating the Controlled Substances Act encountered while crossing the border, arriving at a U.S. port of entry, or at a Border Patrol checkpoint may be deemed inadmissible and/or subject to, seizure, fines, and/or arrest.”
CBP “wants to remind the public that while traveling through any U.S. Border Patrol checkpoint, to include New Mexico, being in possession of marijuana is illegal under federal law,” they said.
CBP’s actions against state-legal marijuana business has also received pushback from other members in Congress as well.
“The Biden-Harris Administration is not doing enough to protect states who are not waiting for the federal government to catch up,” Rep. Earl Blumenauer (D-OR), the now-retired founding co-chair of the Congressional Cannabis Caucus, told Marijuana Moment last April.
“These seizures underscore the confusion and harm caused by the growing gap between the federal government and state-legal operations,” the congressman said. “Absent descheduling, President Biden urgently needs to issue guidance to prevent this type of infringement from happening again.”
Meanwhile in New Mexico, the state House of Representatives last week approved a Senate-passed bill to establish a therapeutic psilocybin program in the state.
A House committee separately passed a bill that would further protect medical marijuana patients in the state from being penalized at work for off-duty use of cannabis. And a Senate companion version of the legislation also moved through a panel in that chamber.
Read the federal agencies’ memorandum in the New Marijuana marijuana industry lawsuit below:
Ohio’s GOP Governor Pushes To Shift Marijuana Tax Revenue To Support Police And Jails
Photo courtesy of Mike Latimer.
The post Feds Say Marijuana Can Be ‘Summarily’ Seized From State-Legal Businesses—But Not If It’s Rescheduled appeared first on Marijuana Moment.
