Marijuana and the Commerce Clause

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich since the Supreme Court came to the opposite conclusion. States continue to legalize marijuana, for medicinal purposes or otherwise, despite Supreme Court affirmation of Congressional criminalization. Is this a state or federal matter?

Foibles of Federalism; The Legal/Illegal Environment of Cannibus

Marijuana is now either legalized, legalized for medical use or decriminalized by state law in nearly one-half of the United States. However, it is still illegal under federal law. The US Supreme Court determined in Gonzales v. Raich that the powers granted the federal government in the Commerce Clause support federal legislative authority to act. The years since that case have seen troughs and peaks of federal enforcement, promises not to enforce and those promises broken.  Now as businesses begin the  task of selling marijuana under state law, they discover that banks are unwilling to handle their money. Fearful of running afoul of federal law and facing disciplinary action or worse, federally licensed banks are refusing to handle marijuana money that is legally obtained under state law but are illegal proceeds of a crime under federal law. The DOJ recently promised to give banks guidance on how to legally handle this money without risking enforcement action. Banks are skeptical. These are the kinds of policy promises that have been broken before and, of course, are non-binding on future administrations who can prosecute past actions.  So it looks like marijuana dispensary entrepreneurs will be burying a lot of cash in coffee cans in their backyards.  The more things change . . .

Warning: This video includes the word "f**k"


Is this how legal recreational use of marijuana will affect businesses?

State v. Federal Power: Conflict Over Legal Marijuana Dispensaries

Under the Supremacy Clause of the Constitution, where state and federal law conflict, the federal law is supreme.  However, that presumes that the federal government is acting within its enumerated powers rather than intruding on the police powers of the states. As discussed previously in this blog, over two hundred years has passed since the ratification of the Constitution and we are still trying to figure these issues out.

Recently, the Departmentof Justice has sent leters to marijuana dispensaries in Colorado that are located within 1000 feet of schools, they they must immediately shut down or face federal prosecution. The dispensaries are selling marijuana legally under Colorado state law and operate out of facilities licensed and permitted by the municipalities in which they are located. This is another symptom of an ongoing state vs. federal conflict that shows little sign of being resolved anytime soon - and which makes for an outstanding opportunity to discuss the parameters of state and federal power in class.

Featured Case: Gonzales v. Raich

Angel Raich and Diane Monson, suffering from serious medical ailments, were being treated with marijuana under the California Compassionate Use Act.  Monson grew her own marijuana.  Raich relied on two local men to raise marijuana for her. The plaintiffs actions were legal under California law but ostensibly illegal under federal law. The plaintiffs instituted an action for declaratory judgment against the federal governmnet seeking a ruling that that federal regulation exceeded the Commerce Clause power. The Supreme Court ruled in favor of the federal government relying on Wickard v. Filburn analysis:  "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."

Beyond the obvious Commerce Clause / Enumerated Powers / Federal v. State Power issues, I think that there are 4 other really interesting aspects of this decision that can be explored in class:

1. Ten years before, the Supreme Court's decision in US v. Lopez purported to draw the line for a more limited use of the commerce clause power.
"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."
What are we to make of the Commerce Clause power now?

2.  Justice Scalia (voting with the majority for limited federal power in Lopez) filed a concurrence in Raich.
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
This is undoubtedly a broad view of federal regulatory power.  All this despite Scalia admitting in oral argument, "I used to laugh at Wickard."

3. At the time of the Raich decision, 9 states had medicical marijuana statutes. Fifteen states plus DC now have such laws and 10 more states have legislation under consideration. Are the states thumbing their noses at the feds?  Do the feds care? After announcing that Federal resources would not be used to purusue marijuana use where it was legalized by states, the DOJ seems to be rethinking its position.

4. What do we do with other activities associated with marijuana use - like advertising. Will the FCC take action against broadcasters who run ads for dispensaries? Would a new executive administration be more aggressive in enforcement of federal law?

A variety of images are available at Voices of American Law site.  Plaintiffs Monson and Raich:

Commerce Clause - the 1938 View on Marijuana Regulation

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich.