Marijuana Moment explain
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.
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