Congress’s Power to Ban Marijuana Challenged By Renowned Attorney David Boies In González v. Raich, the U.S. Supreme Court upheld Congress’s

Congress’s Power to Ban Marijuana Challenged By Renowned Attorney David Boies In González v. Raich, the U.S. Supreme Court upheld Congress’s

authority to prohibit the local cultivation and use of marijuana. Even if the cultivation and use of marijuana were a purely local activity, Gonzalez held that its substantial effect on interstate commerce meant that

Congress could regulate the entire activity. David Boies—involved in high-profile cases such as Bush v. Gore and Perry v. Brown—filed suit in Massachusetts federal court on behalf of Canna Provisions Inc., arguing that the reasons supporting SCOTUS’ ruling in González are no longer valid. In summary, the Complaint argues that:

• Congress has abandoned the goal of eradicating the marijuana market that originally justified the Controlled Substance Act’s ban on intrastate marijuana. Congress has protected state medical marijuana programs in annual appropriations and the DOJ has adopted policies not to interfere with state-legal marijuana.
• State-regulated marijuana is now distinguishable from illicit interstate marijuana due to strict labeling, testing and seed-to-sale tracking requirements. So regulated intrastate marijuana is no longer a "fungible commodity" akin to wheat, a key finding in Raich.
• State-regulated marijuana markets have reduced rather than increased the interstate marijuana market, by providing a legal alternative. So permitting intrastate marijuana no longer risks increasing the interstate marijuana market, another key justification in Raich.

The Complaint further states that Congress has also permitted, by not interfering with, the legalization of medical marijuana in D.C., as well as adult-use marijuana legalization in several territories, including Puerto Rico.

In a recent case, the First Circuit held that the in-state residency requirement in Maine’s Medical Marijuana Act violated the dormant Commerce Clause because it was a facially protectionist state regulation of an interstate market in medical marijuana. The majority was not convinced that the CSA and Congressional intent to “eradicate” and ban the marijuana market required a different result.

The dissent, however, saw it differently. Circuit Judge Gelpí reasoned that the residency requirement did not violate the dormant Commerce Clause because the CSA prohibits the market in marijuana altogether.

A note in today’s WSJ (link in the comments) highlights the complaint and includes the following quote by Ted Olson: “[Boies’] timing is good. This is the sort of thing that this court is looking at.” However, John Q. Barret, a law professor, said that there is a reason for caution, since federal regulation of products from food to furniture could be in jeopardy if the Court were to shrink Congress’s commerce power. “You shouldn’t distort constitutional law just because the political process is lagging,” he said.