Why Can’t ‘Cannabis’ Be In The Commerce Clause?

  • by Allen St. Pierre, Former NORML Executive Director July 18, 2011

    by Byron Andrus, NORML Foundation legal intern and second year law student at George Mason University School of Law

    Recently, NORML supported the efforts of Congressmen Ron Paul (R-TX) and Barney Frank (D-MA) in their sponsorship of H.R. 2306, ‘Ending Federal Marijuana Prohibition Act of 2011’, a House bill which seeks to remove federal penalties for marijuana offenses and thus allow for the individual states to set their own marijuana policies. While the bill will likely fail to reach even a committee hearing due to the efforts of another Texas Republican and Judiciary Committee Chairman, Lamar Smith, its introduction has raised some interesting constitutional questions and has given more food for thought to legal scholars interested in the oft-forgotten 10th Amendment.

    The 10th Amendment reads rather plainly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Essentially, this means that the powers not granted to the federal government by the Constitution, which are very limited in number, are left to the state legislatures. This may seem obvious, but judges and constitutional scholars have continuously debated about what “the powers not delegated to the United States” are.

    Controversially, the power of the federal government to regulate interstate commerce granted to it by Article 1, Section 8 of the Constitution has been interpreted by the Supreme Court to mean that the feds may regulate nearly anything that has an effect on interstate commerce. In the landmark case of Gonzales v. Raich, the Supreme Court ruled that a woman who grew marijuana plants on her property for her own medical use was participating in “interstate commerce.” Justice Clarence Thomas, in his dissent, astutely observes, “no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” This common sense reading of “interstate commerce” would prevent the federal government from harassing peaceful citizens who are in compliance with state laws, and is a good example of a “10th Amendment” approach to the issue of marijuana legalization.

    The Founding Fathers took great pains to choose carefully the words they inserted into the text of the Constitution. Nowhere in the document is the federal government granted the power to regulate intrastate commerce (commerce within one state). Furthermore, “commerce” refers to transactions in which goods or services are exchanged. Ms. Raich did not intend to buy, sell, trade, or give away her marijuana, she only intended it to be used for her own medical purposes—despite this and the clear omission by the founders of a federal primacy regarding states’ economies under the 10th Amendment. The real world application of the Gonzales decision means that those with serious illnesses like Ms. Raich are not legally permitted to grow and consume their own medicine—even if state laws allow for such.

    The Commerce Clause has also been invoked when armed federal agents decide to raid dispensaries in states where medical marijuana is legally permitted to be sold. The latest memo from the Department of Justice, known as the ‘Cole Memo’, suggests that the federal government will continue to raid dispensaries, even ones that are operating in accordance with state laws. This contradicted a 2009 memo written by the former Deputy Attorney General David Ogden, in which he suggested that federal resources should not be wasted on marijuana enforcement as long as dispensary owners remained in “clear and unambiguous” compliance with state law. This reversal in policy now suggests that the federal government can target those involved in the medical marijuana industry, even those in compliance with state law.

    In addition to the constant threat of arrest and prosecution, the potential loss of one’s business creates a great deal of uncertainty in the markets of states where medical marijuana is legal. Investing in a dispensary has become a risky proposition, and it has led to dispensary owners already heavily invested in the business to wonder whether or not they will be able to open their doors. This uncertainty causes patients to go without their medicine and causes business owners to flounder under unclear regulations. Removing the federal penalties for marijuana offenses by passing H.R. 2306 would completely eliminate this problem, as patients and business owners would simply need to comply with state laws, no longer having to worry about getting their doors kicked in by federal agents. A “10th Amendment” approach to marijuana policy would finally ease the fear and uncertainty that are part and parcel of federal Marijuana Prohibition.

    An expansive reading of the federal government’s ability to regulate interstate commerce seems to be at odds with the 10th Amendment. Since the federal government may not regulate intrastate commerce, it follows that this is a right reserved to the states. The division of powers in our federal system was intended to prevent an overreach of federal power. Unfortunately, the ever-expanding federal government now sees fit to regulate everything from the amount of water you can have in your toilet to what kind of light bulbs consumers can buy to what plants you may grow on your property—the laws of the states be damned if necessary.

    H.R. 2306 puts forth the common sense proposition, consistent with the 10th Amendment, that it should be the prerogative of each state to determine for itself whether or not to legalize marijuana for either medical or recreational purposes—a tried and true, and constitutionally sound approach that previously worked to end the folly of another federal government overreach, Alcohol Prohibition. A return by federal judges to interpreting the plain meaning of “interstate commerce,” coupled with an emphasis on the 10th Amendment, would mark an excellent starting point in getting the federal government out of the way and allowing state governments to make their own informed decisions on marijuana policy.

    56 responses to “Why Can’t ‘Cannabis’ Be In The Commerce Clause?”

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    2. Ben says:

      Dream on… As common sense as it is that modern drug prohibition should have required a constitutional amendment the way alcohol prohibition did is terribly logical. And in the Drug War, logic is unwelcome.

    3. bongstar420 says:

      Um, this bill is not required to fix this commerce interpretation. Appointing reasonable judges with no agenda is all that is required.

      As far as I am concerned, the commerce interpretation which you are referring a back door way of permitting the agency to do an illegal act. Yes, the government can do illegal stuff just like private groups and individuals. All agencies and individuals are subject to corruption. It is not inherent to governments. In fact, this exists due to private interests. The government is not responsible for prohibition. Large corporations and certain social groups have an agenda that requires the government to legitimize their opression.

    4. sucksforthem says:

      You want cannabis to be legal? Take back your nation from the thieves who stole it. Get off your ass, get an opinion, get involved, expose the lies. The liars will want to fight about it. Believe me, we all hope it comes to that. The answer to 1984 is 1776. God bless. May America be free once again!!!

    5. Scott says:

      As someone working to inform Republicans that the Controlled Substances Act they generally love is based on the New Deal version of the Commerce Clause (i.e. the political left agenda), such informing being the key to turning the tide heavily in our favor, I am happy to see emphasis on the Commerce Clause here.

      We will likely not yet win by taking your valid argument into our judicial system.

      We must first turn to the true Supreme Court (the court of public opinion) to create enough public pressure to help avoid the ugly legal hacks existing in the public record outside mainstream media reporting.

      Allowing Congress to regulate anything having a substantial effect on interstate commerce is ridiculous, considering that your thought activity, which determines every part of your buying and selling decisions, always rationally has that effect.

      Supreme Court Justice Clarence Thomas also rightfully stated in his dissent:

      “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”

    6. Brandon says:

      The unconstitutionality of cannabis prohibition is so extensive; is it just lots of money that we need to attack and win cannabis regulation on legal grounds?

    7. Brandon says:

      Excellent write-up by the way.

    8. Steve says:

      I feel there are 3 specific amendments that justify anti prohibition. the 4th amendment makes it impossible to hunt down the supply, the 9th amendment helps clarify the previous 8, including the “grey” area of prohibition, and the 10th which recognizes that day to day affairs of citizens are the authority of the sovereign states. We are not a confederacy but things as basic as law enforcement are the states business only.

    9. LoopFiasco says:

      As someone with a legal degree, I can agree with the whole of the analysis presented herein and I realize it is written with a layman’s understanding of law. And on that point, this article is excellent. Although you may find detractors who want an expansive commerce clause power so the feds can regulate things they like.

      What is missing, and what is interesting to me legally, is the conflict in laws between the feds and state policies on mmj and application (or lack of application) of the Supremacy Clause of the constitution. In the relatively few instances in which it has been invoked in the mmj legal debate, the courts have said the Supremacy clause is not triggered. Namely, because the federal CSA states it is not meant to occupy the field (field preemption) and conflict preemption doesn’t work because one can still apply federal law in the states with MMJ laws on the books under separate sovereign jurisidction.

      Query for the legal interns: Under what possible route can a challenge to separate sovereign jurisdiction by a State with MMJ be undertaken to get a judical determination that either states 10th amendment powers/traditional police powers of the State control OR the supremacy clause doesn’t fit. Namely, i am looking at theories/ways to get a judicial determination that overturns federal policy of not allowing people complying with state law who find themselves in federal criminal court to ‘tell their story’ to the judge or jury. This is not happening now and I think is a clear violation of the 6th amendment and possibly 5th amendment due process as well.

      Sorry for the length here, great article by the intern.

    10. LoopFiasco says:

      I should have added above; that the traditional appeal of a criminal conviction likely won’t work as the obvious routes have been tried and were not successful. Also, i meant to say that the article is written with a view to a layman’s understanding for the people reading it, not that the person who wrote it doesn’t understand law. That didn’t come out right when I wrote it and I re-read it and I apologize for any confusion. I did enjoy the article and wish more people would think in 9th and 10th amendment terms without racist baggage attached to any mention of ‘state’s rights.’ Yes, they have been abused, and badly at that, in the past. But they can also be used for good to help the State’s protect their citizens from an overreaching federal government.