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.
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