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.”


*— 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. —*

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 *inter*state 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.*

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And Restore ‘Foundational’ Constitutional Principle appeared first on Marijuana
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