A top conservative advocacy organization is backing a coalition of marijuana businesses that are asking the U.S. Supreme Court to take up a case challenging the constitutionality of federal cannabis prohibition.
In an amicus brief filed with the court on Wednesday, the Koch-founded Americans for Prosperity Foundation (AFPF) implored justices to hear the case and settle the question of whether imposing federal marijuana criminalization within states that have enacted their own legalization laws violates the Commerce Clause of the U.S. Constitution.
The libertarian-leaning AFPF said in the brief that it’s their organization’s belief that “the general power of governing rests with the States—not the federal government—and that most decisions should be made at the state and local levels, reflecting the needs and priorities of their communities.”
To that end, it said, the Controlled Substances Act (CSA) that treats cannabis as a strictly prohibited Schedule I drug—at least as it concerns the Massachusetts-based marijuana businesses petitioning the court—”exceeds constitutional limits on federal authority as an original matter and cannot be squared with basic principles of federalism.”
“More broadly, AFPF believes that Gonzales v. Raich—a constitutional aberration granting the federal government authority to trample on States’ core power to choose whether and how to regulate local private conduct—was wrongly decided and should be squarely overruled,” it said.
In Gonzales v. Raich, a landmark 2005 case, 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 new case “is not about sound public policy or the wisdom of Massachusetts’ regulatory choices. The core question here is whether the federal government may trespass on and override exercises of States’ traditional police power to regulate purely local activity and decide for themselves how best to protect the health, safety, and welfare of their residents,” AFPF said. “Under our system of federalism, the answer is no.”
“As applied to Petitioners—which ‘cultivate, manufacture, possess, and/or distribute marijuana wholly within Massachusetts in full compliance with its laws and regulations,’—the CSA is an affront to our system of federalism. It federally criminalizes wholly intrastate activity not intended for and without any empirically demonstrable link to interstate commerce. This assertion of general police power is unconstitutional.”
AFPF—supporting the petitioners Canna Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings—said justices should “sweep Raich into the dustbin and squarely overrule it.”
“The Petition presents an ideal (and rare) opportunity to begin to ‘temper’ and ‘modify,’ this Court’s Commerce Clause and Necessary and Proper Clause jurisprudence to bring it closer in line with the Constitution’s original public meaning. This Court should take up that task. This Court should end Raich’s ‘rational basis’ error by squarely overruling that aberration and making clear that the Constitution requires more before the federal government may intrude on the core police powers it reserves to the States. As Petitioners explain, the sky will not fall if this Court takes that modest step. On the contrary, our constitutional republic will be healthier for it.”
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 last week 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.”
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. The next step would have been for the Department of Justice to file its initial brief, which had a due date of November 28. It remains to be seen if the court will end up requesting a brief from the government now that it has declined to do so on its own accord.
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 Raich—a move that could upend federal prohibition.
The statement pointed to policy developments since the earlier case was decided, such as the hands-off enforcement approach taken by the Department of Justice as more states legalized cannabis and a congressional budget rider protecting state-legal medical marijuana programs.
“Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning,” Thomas wrote, describing the government’s approach to cannabis enforcement as “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
“Though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich, has sent mixed signals on its views,” the justice continued, saying the situation “strains basic principles of federalism and conceals traps for the unwary.”
The initial complaint in the current case now known as Canna Provisions v. Bondi, 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.
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