A lawsuit filed late last month in the U.S. District Court for the District of Massachusetts argues that the federal marijuana prohibition is unconstitutional as it applies to the intrastate operations of state-licensed cannabis suppliers. This claim is similar to one that the US Supreme Court decisively rejected in the 2005 case Gonzales v. Raich, which involved state-permitted medical use of marijuana. But the plaintiffs are coming in Canna facilities against Garland– a pot store chain and three other marijuana businesses in Massachusetts – claim that several developments since then undermine the logic of that statement.
In the 2005 case, Angel Raich and Diane Monson, two patients who used marijuana for symptom relief under California law, argued that Congress exceeded its authority “to regulate interstate commerce” when it alleged noncommercial prohibit production and possession. of cannabis that has never crossed state lines. Monson grew her own marijuana, while Raich relied on two caregivers to grow it for her.
It may seem obvious that the power to regulate interstate commerce does not extend to conduct that is neither commercial nor interstate. But the Supreme Court ruled differently in the 1942 case Wickard v Filburninvolving an Ohio farmer who had exceeded his wheat quota under the Agricultural Adjustment Act of 1938. Although Roscoe Filburn intended to use the additional wheat “entirely for consumption on the farm,” the Court unanimously ruled that the collective impact of such decisions on interstate commerce was sufficient to justify the rule he violated.
If farmers grow wheat for their own consumption, the justices reasoned, it will have “a substantial impact” on the interstate “price and market conditions” that Congress sought to regulate. “Even if appellant’s activity is local, and even though it may not be considered commerce,” Justice Robert H. Jackson wrote for the Court, “it may nevertheless, whatever its nature, be accomplished by Congress if it exerts a substantial economic effect on the interstates. trade.”
Register for the majority Gonzales v. RaichJustice John Paul Stevens applied similar reasoning to the federal ban on marijuana. “Our case law firmly establishes Congress’s power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce,” Stevens wrote. Wickardhe said, “affirms that Congress may regulate purely intrastate activities that are not themselves ‘commercial’ in the sense that they are not produced for sale, if it concludes that failure to regulate that class of activities would undermine the regulation of the would undermine the interstate market. that good.”
Like Filburn, Raich and Monson “cultivate for domestic consumption a fungible good for which there is an established, if illegal, interstate market,” Stevens wrote. He saw a “likelihood” that marijuana produced in California for medical use would be diverted to the interstate market, bypassing the “closed regulatory system” that Congress established through prohibition.
“While the abuse of homegrown wheat has tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the abuse of homegrown marijuana has tended to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. ,” Stevens wrote. “In either case, the regulation is squarely within Congress’s commerce power because production of the commodity intended for home consumption, whether wheat or marijuana, has a substantial effect on the national market’s supply and demand for that commodity.”
Justice Clarence Thomas was dismayed by the majority’s position. “Respondents Diane Monson and Angel Raich use marijuana that has never been purchased or sold, has never crossed state lines, and has had no demonstrable effect on the national marijuana market,” Thomas wrote in his dissent. “If Congress can fix this under the Commerce Clause, then it can fix just about anything – and the federal government will no longer be a government of limited and enumerated powers.”
Whatever you think of Stevens’ reasoning, what the four marijuana companies in Massachusetts are arguing about Canna facilities against Garlandit is outdated for various reasons.
First, the plaintiffs say that “the regulated market in Massachusetts, and dozens of similar intrastate markets, the motorway trafficking in marijuana by providing consumers with a regulated alternative.” From 2012 to 2022, the complaint states, “the amount of illegal marijuana seized by U.S. Customs and Border Protection has decreased by nearly 95%,” meaning that “marijuana consumers Less and less are getting their marijuana through the interstate channels that Congress tried to ban.” That “steep decline in marijuana imports,” Canna Provisions et al. add, “deprives criminal organizations of an important source of illicit revenue.”
Second, the lawsuit says, “Today’s regulated marijuana is not fungible like wheat.” State-regulated marijuana products “are distinguishable (from each other and from illegal interstate marijuana) based on the labeling and tracking requirements that states impose,” the plaintiffs note. “Regulated marijuana in Massachusetts is subject to a strict tracking and labeling system that applies at every stage of the supply chain, from seed to sale. As a result, any marijuana product sold under Massachusetts regulations is far from a fungible mass-produced product. to its origin and distinct from illegal interstate marijuana.”
Third, Canna Provisions et al. have argued that “the federal government has abandoned any goal of eliminating marijuana from interstate commerce.” Since 2014, congressional spending has prohibited the Justice Department from interfering with the implementation of state medical marijuana laws. And even when it comes to recreational marijuana, the Justice Department has taken a hands-off approach and declined to prosecute cannabis suppliers as long as they follow state law. Congress has authorized the legalization of medical and/or recreational marijuana in Washington, D.C., and in areas such as Guam, Puerto Rico, the U.S. Virgin Islands, and the Northern Mariana Islands.
“The federal government no longer operates under the assumption that banning intrastate marijuana is necessary to police interstate marijuana,” the complaint said. “What was once a targeted federal crusade against the cannabis plant has been replaced by an ambivalent set of inconsistent policies, some aimed at reducing federal interference in state efforts to regulate marijuana.” In other words, the “closed regulatory system” aimed at “eliminating” the interstate marijuana trade no longer exists.
The plaintiffs are seeking a declaratory judgment that the Controlled Substances Act is unconstitutional as applied to the intrastate cultivation, production, possession and distribution of marijuana under state law. They also want an order prohibiting the Justice Department from “enforcing the CSA (either alone or in conjunction with any other federal law such as the Bank Secrecy Act) in a manner that would restrict the intrastate cultivation, production, possession, and distribution of marijuana disrupts. , pursuant to state law.”
While these solutions would not allow interstate transactions or shipments, they would help alleviate some of the hardships that companies like Canna Provisions are facing due to the ongoing federal ban. “If plaintiffs get what they ask for, it would help tremendously,” writes marijuana attorney Vince Sliwsoki. “State legal marijuana businesses would be treated more like other businesses, except for the frustrating ban on marijuana crossing state lines. They would have similar access to banking, [Small Business Administration] loans and federal tax treatment, for starters.”
How likely are the claimants to get what they ask for? Not a big deal, I think, given the flexibility of the Commerce Clause analysis that Stevens applied Gonzales v. Raich.
Canna Facilities et al claim that state legal marijuana businesses actually like theirs Reduce interstate commerce in cannabis. But the same could have been said about the home-grown medical marijuana used by Raich and Monson: because they produced or obtained it locally, there was no need for them to purchase marijuana imported from Mexico or other states (leaving aside the improbability of that scenario). in a state like California, which has long been a major marijuana producer). Stevens nonetheless worried about a “move” into the interstate market, and the same risk exists in states with licensed pharmacies.
Visitors can purchase marijuana products from those stores and take them home, either for personal use or to share with friends and acquaintances, sometimes in exchange for financial compensation. To the extent that a lack of “fungibility” matters, it promotes such interstate transportation, because people living in states where marijuana is still prohibited may prefer regulated, reputable, and reliable products sold in states where it is legal is.
Finally, the plaintiffs argue that the federal government, which in 2005 was clearly determined to eradicate the interstate marijuana market, is today “ambivalent” and “inconsistent.” Still, the somewhat permissive policies and practices cited in the complaint do not necessarily mean that Congress has “abandoned any goal of eliminating marijuana from interstate commerce.” Officially, that’s not the case, and proponents of that goal might argue that the federal government furthers that goal by continuing to suppress state-licensed cannabis suppliers in various ways while simultaneously stopping sending them to prison.
That position may be questionable, but it is at least as logical as Stevens’ conclusion that the regulation of interstate commerce extends to a bag of home-grown marijuana in a cancer patient’s bedside table. “This unjustified intrusion on federal power,” Canna Provisions et al. argue, “lacks any rational purpose.” But as Stevens noted in a classic understatement, “We have never required Congress to legislate with scientific rigor.”