Politics
Libertarian Think Tank Urges Supreme Court To Hear Marijuana Case And Restore ‘Foundational’ Constitutional Principle
A leading libertarian think tank is imploring the U.S. Supreme Court to take up a case challenging the constitutionality of federal marijuana prohibition, arguing that the imposition of that policy on states that have enacted laws to regulate cannabis undermines a “foundational feature of our constitutional structure.”
The Cato Institute filed an amicus brief with the court on Tuesday supporting the Massachusetts-based marijuana companies that are seeking to resolve the issue and get the court to reach a ruling that protects intrastate cannabis activity from federal intervention.
The Controlled Substances Act (CSA), which currently lists marijuana as a Schedule I drug, “exemplifies how the federal government has all too often displaced the states as this country’s primary policymakers, aided in that effort by this Court’s modern Commerce Clause precedents,” the institute said.
“Before 1970, states regulated and then criminalized marijuana use as an exercise of their police power,” it said. “But that year, Congress enacted the CSA to ban all marijuana commerce—interstate and intrastate alike.”
The amicus brief was submitted to the court on the same day that justices scheduled a closed-door meeting for next month to discuss the case, Canna Provisions v. Bondi.
“The time has come to correct course and restore the Constitution’s first principle of limited national power,” the Cato Institute said. “This case presents an ideal vehicle for that task. By extending federal criminal law to purely intrastate, state-licensed marijuana activity, the decision below collapses the distinction between national and state authority and erases structural limits that preserve federalism.”
“In criminalizing the cultivation and possession of marijuana that never crosses a state border, the CSA regulates not commerce but agriculture, manufacturing, and consumption—matters reserved to the states,” it continues. “The commerce that the CSA regulates here isn’t interstate. In Massachusetts’s marijuana program, every gram of marijuana grown, processed, transported, and sold within the Commonwealth is tracked from seed to sale under comprehensive state law.”
“This case squarely presents whether Congress may wield a near-boundless commerce power to criminalize activity that is lawful under state law and confined within a state’s borders. Allowing Congress to regulate purely local conduct under a theory of aggregated economic effects erases the distinction between national and state authority on which our federal system depends. It converts the Commerce Clause into a general police power, one the Framers deliberately withheld from the national government. Such an intrusion offends the Constitution’s structural guarantee of liberty and allows an unfettered Congress to regulate nearly all aspects of our lives.”
The powerhouse law firm Boies Schiller Flexner LLP last month submitted their petition for writ of certiorari from the court on behalf of their clients, and the Justice Department earlier this month declined the opportunity to file a brief for or against the case’s consideration by the justices.
A lead attorney representing the petitioners recently told Marijuana Moment that he’s “hopeful”—albeit somewhat “nervous”—about the prospect of justices ultimately taking up the matter and deciding to address the key legal question about the constitutionality of federal cannabis prohibition.
“Time is of the essence,” Josh Schiller said, noting the dramatic shift in public opinion and state laws governing cannabis. “We think that this is the right time for this case because of the need—the industry needs to get relief from federal oversight at the moment.”
Before the conference was scheduled, the Koch-founded Americans for Prosperity Foundation also submitted an amicus brief encouraging justices to take the case.
A U.S. appeals court rejected the arguments of the state-legal cannabis companies the firm is representing in May. It was one the latest blows to the high-profile lawsuit following a lower court’s dismissal of the claims. But it’s widely understood that the plaintiffs’ legal team has long intended the matter to end up before the nine high court justices.
Four justices must vote to accept the petition for cert in order for the court to take up the case.
While it is not clear if SCOTUS will ultimately take the case, one sign that at least some on court might be interested in the appeal is a 2021 statement from Justice Clarence Thomas, issued as the court denied review of a separate dispute involving a Colorado medical marijuana dispensary.
Thomas’s comments at the time seemed to suggest it’d be appropriate revisit the precedent-setting case, Gonzales v. Raich, where the Supreme Court narrowly determined that the federal government could enforce prohibition against cannabis cultivation that took place wholly within California based on Congress’s authority to regulate interstate commerce.
The initial complaint in the current case, filed in U.S. District Court for the District of Massachusetts, argued that government’s ongoing prohibition on marijuana under the CSA was unconstitutional because Congress in recent decades had “dropped any assumption that federal control of state-regulated marijuana is necessary.”
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At oral arguments on appeal late last year, David Boies told judges that under the Constitution, Congress can only regulate commercial activity within a state—in this case, around marijuana—if the failure to regulate that in-state activity “would substantially interfere [with] or undermine legitimate congressional regulation of interstate commerce.”
Boies, chairman of the firm, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others.
Judges, however, said they were “unpersuaded,” ruling in an opinion that “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.”
The district court, meanwhile, said in the case that while there are “persuasive reasons for a reexamination” of the current scheduling of cannabis, its hands were effectively tied by past U.S. Supreme Court precedent in Raich.
This comes in the background of a pending marijuana rescheduling decision from the Trump administration. President Donald Trump said in late August that he’d make a determination about moving cannabis to Schedule III of the CSA within weeks, but he’s yet to act.
Meanwhile, last month the Supreme Court agreed to hear a separate case on the constitutionality of a federal law prohibiting people who use marijuana or other drugs from buying or possessing firearms. The Trump administration has argued that the policy “targets a category of persons who pose a clear danger of misusing firearm” and should be upheld.
Photo courtesy of Philip Steffan.
