Marijuana Activists Ask Supreme Court To Hear Their Case Against DEA — The case argues that the current classification of cannabis as a Schedule I drug under the Controlled Substances Act is “unconstitutionally irrational and violates plaintiffs’ fundamental rights.”

Under Supreme Court case law, it would be virtually impossible. You’d have to go down the discrimination route, which essentially says if a law is not discriminatory on its face, you have to show disproportionate impact and legislative intent to discriminate against a certain group. Good luck finding that evidence, because discrimination happening to a certain group doesn’t show (or even presume) intent. You essentially need the smoking gun.

Not to mention, it could be considered a political question or more of a police power issue, and Congress and/or the executive get fairly broad deference.

Also, they’d have to essentially overrule about 80 years of Supreme Court precedent starting with Wickard v. Filburn in the ’40s and Gonzales v. Raich in 2005.

With the current makeup of the court, it’s impossible. It’s also highly unlikely even if the court became liberal.

Best bet is to elect a progressive legislature and have them put a bill in front of the president.

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