Whether you call it cannabis, marijuana, or something else entirely, the plant causing so much consternation at the federal level is still illegal thanks to the Controlled Substances Act (CSA). Repeated attempts to legalize cannabis have stalled. Now, the U.S. Supreme Court (SCOTUS) is being asked to consider a case challenging the federal government’s right to interfere at the state level.
At the time of this writing, SCOTUS was scheduled to conduct a closed-door meeting to consider a case brought by a group of cannabis companies challenging the federal government’s use of the Commerce Clause to regulate cannabis at the state level.
The closed-door meeting is intended to determine whether the court will actually take up the case. There is no guarantee that they will. But if they do, whatever decision they might ultimately reach will have a profound impact on both medical and recreational cannabis.
The Heart of the Issue
At the heart of the issue is the fundamental question of whether the Commerce Clause is being properly applied when the federal government chooses to regulate cannabis production in a given state. SCOTUS ruled that it is in Gonzales v. Raich back in 2005.
That case has served as a precedent ever since. But this new case seeks to overturn Gonzales v. Raich. Attorneys for the plaintiffs argue that the Commerce Clause no longer has a valid application to state cannabis regulation given the fact that the federal government has all but stopped enforcing marijuana laws at the state level.
Although cannabis remains federally illegal, Congress has prevented the DOJ from spending any federal tax dollars on state enforcement. At the state level, lawmakers are benefiting from that decision. But if Congress were to suddenly restore funding, the DOJ could go back to business as usual.
Plaintiffs in the new court case hope to circumvent that with a victory. If they can convince SCOTUS that there is no legitimate application of the Commerce Clause, as long as states keep cannabis within their own borders, they could effectively achieve a complete overturning of the federal ban altogether.
Maintaining Strict State Control
Let us assume SCOTUS takes the case and rules in favor of the plaintiff. In order to keep the federal government at arm’s length, the states would have to continue maintaining strict control over cannabis within their borders. The near universal ban against interstate transport is the perfect example.
Let us take a look at Utah. The Beehive State is a medical-only state that requires all medical cannabis patients to purchase their medicines through licensed pharmacies. There are currently just over a dozen medical cannabis pharmacies in Utah, with the Beehive Farmacy locations in Brigham City and Salt Lake City being two of them.
Patients cannot purchase medical cannabis in a neighboring state and legally bring it into Utah. Likewise, they cannot transport medical cannabis from Utah to a neighboring state. Carrying medical cannabis across state lines is strictly prohibited. That would need to continue. The minute a state lifts its prohibition against cross-border transport, the Commerce Clause automatically kicks in.
It’s Probably a Long Shot
Personally, I am not counting on SCOTUS to take up the case. I believe the conservative side of the court is content with leaving Gonzales v. Raich alone. If they do take it up, a victory by the plaintiffs is still a long shot.
One final note: overturning Gonzales v. Raich would not necessarily address cannabis being a Schedule I controlled substance. It would only prevent federal interference in state-level cannabis regulation via the Commerce Clause.
