As you read along here, try this mantra: Trust your eyes. Don’t allow yourself to be gaslit.

You may recall from our previous post that we think the United States Supreme Court could overrule the marijuana provisions of the federal Controlled Substances Act if it was presented with the right case. That case is now making its way through the federal courts and seems to be on a collision course with the High Court.

Late last week, the U.S. Department of Justice submitted a brief urging the First Circuit Court of Appeals to reject a challenge to the federal government’s authority to prohibit marijuana.

The Case at Issue

Lauren Berg at Law360 sets the stage nicely:

In its brief, the government asked the appellate court not to revive the lawsuit brought by a group of cannabis companies — led by litigator David Boies of Boies Schiller Flexner LLP — arguing that, although some states now regulate marijuana, they cannot take away Congress’ commerce clause authority to prohibit the cultivation and use of the drug.

“‘It is clear that the commerce clause empowers Congress to prohibit all — and not just inconsistent — state regulation of’ ‘private activity affecting interstate commerce,'” the government said.

The Constitutional Question

In many ways, the question presented in this case is a simple one: Does the commerce clause of the federal Constitution allow Congress to prohibit intrastate sales of marijuana? As we previously explained:

Nearly 20 years ago, that very issue came before the U.S. Supreme Court. In Gonzales v. Raich, 545 U. S. 1, 5 (2005), the Court held that Congress’ power to regulate interstate commerce authorized it “to prohibit the local cultivation and use of marijuana.”

In legal jargon, the Court rationalized that Congress had “enacted comprehensive legislation to regulate the interstate market in a fungible commodity” and that “exemption[s]” for local use could undermine this “comprehensive” regime. The Court stressed that Congress had decided “to prohibit entirely the possession or use of [marijuana]” and had “designate[d] marijuana as contraband for any purpose.” Prohibiting any intrastate use was thus, according to the Court, “‘necessary and proper’” to avoid a “gaping hole” in Congress’s “closed regulatory system.”

Translated to non-legal jargon: The Controlled Substances Act (and in particular the prohibition on marijuana) was part of a comprehensive regime to ensure that marijuana would be illegal nationwide, and any exception to that rule threatened to defeat the entire purpose of the act.

The plaintiffs in the case pending in the First Circuit have argued, as we did in our earlier post, that the federal government no longer has a reasonable basis for prohibiting state-regulated marijuana (or at least the rationale used by the Court in Raich): “In the two decades since [Raich], the federal government has abandoned that goal, taking steps to dismantle what was once a ‘comprehensive scheme’ to rid the country of marijuana, the plaintiffs told the First Circuit.”

The federal government, which has undeniably taken a hands-off approach to marijuana enforcement since Raich, has argued that “the high court has never suggested that states can take away Congress’ commerce clause authority by enacting their own regulatory provisions. [Raich] confirms that Congress’ authority is broad enough to include “‘prohibitions,’ ‘restrictions’ and ‘stimulations’ of commerce.”

In other words, according to plaintiffs, even though a number of states have legalized medical and recreational marijuana, that doesn’t take away Congress’ authority under the Commerce Clause.

The Takeaway

The federal government’s position is hard to take with a straight face. There may – and I stress “may” – have been a sufficient rationale at the time of the Raich ruling. But that ruling was premised on the fact that the government was affirmatively acting to stop marijuana activities around the country because the failure to do so would frustrate a national policy against marijuana transactions. As Justice Clarence Thomas noted a few terms ago:

Whatever the merits of [Raich] when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.

Justice Thomas then laid out all of the ways that marijuana is no longer the subject of a comprehensive nationwide prohibition and the various mixed signals sent by the federal government in recent years:

• In 2009 and 2013, the Department of Justice issued memoranda outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law.
• In every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.”
• Approximately 40 states allow medicinal marijuana use, and approximately 22 of those states (and D.C.) also allow recreational use.

Given all these developments, according to Justice Thomas, “one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.”

The reasoning of the Raich decision – regardless of whether it held water at the time – is obviously no longer valid. The Court’s central holding and rationale in that case should be overruled. Now, are there other valid reasons to support the right of the government to prohibit intrastate marijuana activity? That’s up to the government to prove.

To reform advocates, I would caution against overreacting to the First Circuit’s ultimate decision in this case. It may be a tall order for a federal appellate court to overrule a Supreme Court opinion that is directly on point. And regardless of the First Circuit’s decision, this case seems tailor made for the Supreme Court.

What happens at the Supreme Court is always difficult to predict. We took a stab at this very question last year, arguing that either a majority of the Court would overrule Raich on Commerce Clause grounds or, perhaps in a surprising mix of bedfellows, would cobble together five votes using a mixture of conservative justices on Commerce Clause grounds and certain liberal justices on the grounds that marijuana is a fundamental right.

We’ll report back on the First Circuit decision once we have it. And stay tuned for a post on whether, and if so, how, rescheduling marijuana would impact this analysis.

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