A lawsuit filed late last month in the U.S. District Court for the District of Massachusetts argues that the federal marijuana ban is unconstitutional as applied to the intrastate operations of state-licensed cannabis suppliers. That claim is similar to one that the U.S. Supreme Court decisively rejected in the 2005 case Gonzales v. Raich, which involved state-authorized medical use of marijuana. But the plaintiffs in Canna Provisions v. Garland—a pot shop chain and three other Massachusetts marijuana businesses—argue that several developments since then undermine the logic of that ruling.
In the 2005 case, Angel Raich and Diane Monson, two patients who used marijuana for symptom relief in compliance with California law, argued that Congress exceeded its authority “to regulate commerce…among the several states” when it purported to ban noncommercial production and possession of cannabis that never crossed state lines. Monson grew her own marijuana, while Raich relied on two caregivers who grew it for her.
It may seem obvious that the power to regulate interstate commerce does not cover conduct that is neither commercial nor interstate. But the Supreme Court had held otherwise in the 1942 case Wickard v. Filburn, which involved an Ohio farmer who exceeded his wheat quota under the Agricultural Adjustment Act of 1938. Although Roscoe Filburn planned to use the extra wheat “wholly for consumption on the farm,” the Court unanimously ruled that the collective impact of such decisions on interstate commerce was enough to justify the rule he violated.
When farmers grow wheat for their own consumption, the justices reasoned, that has “a substantial influence” on the interstate “price and market conditions” that Congress sought to regulate. “Even if appellee’s activity be local and though it may not be regarded as commerce,” Justice Robert H. Jackson wrote for the Court, “it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
Writing for the majority in Gonzales v. Raich, Justice John Paul Stevens applied similar reasoning to the federal ban on marijuana. “Our case law firmly establishes Congress’ 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. Wickard, he said, “establishes that Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”
Hellbound and Down 