Why Can't 'Cannabis' Be In The Commerce Clause?

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 thoughts

  1. Why can’t government do the right thing? Who knows. I’ve been wondering that for years and the world keeps getting crappier. When do we learn? When do we change? Have hope brothers and sisters. They are few. WE ARE MANY.

  2. It sure is time,Ladies & Gentleman…….The U.S.of A. is about to (supposedly)default on its debt(most of which is inside the ‘Made in China’ label anyways) and the return of the control of Marijuana Laws must be strenuosly debated,and the Laws returned to States Rights
    Y’all are right,and I want to thank you for illuminating,for me,the Constitutional basis for the reform of Marijuana law enforcement.I still don’t understand why the positive impact of taxation & regulation hasn’t made it up the food chain.
    Would LOVE to be on your email list…..does it get you on the No Fly list,too???? Hang in there!!

  3. Hello . Actually Obama Admin like most Presidents say
    they have a statement about decriminalization not then
    begin allowed as they are controlled by the ONDCP to :
    Be Wary of the Mode of Control Affecting Cannabis With
    The Clause of Government to Abolish Recreation and the
    Drug Setting of “Dangerous Schedule” of Prohibited and
    So Called Dangerous Recreational Plants and Medicinal:
    Basis on Premise the Drug War was Abided by State Dept
    and Government Officials who make money on prohibited:
    Drug and Medicinal Plant Amount known as the State and
    Federal Authorities who control the statements of then
    aspiring President to prevent “rampant free ‘drug use'”
    and I don’t see Obama Admin at fault if he was told to
    make a statement by ONDCP Modern Office not to allow a
    decriminalized setting of cannabis which I know he will
    support cannabis if given Free Will as he was the Admin
    who helped write and agree with D.C. medmana Capital(*)
    Accord to begin allotting medicinal pot to Washington :
    Capital Setting for the National Congress to Consider a
    medicinal variety of legally procured cannabis as newer
    accord to see the Republican Grant of Work Tax and the
    value of Republican Consideration before US House began
    midterm bias about number of counted votes allowing the
    Republican Junior Member Majority at US House voting .,
    which seems to be all or nothing about consensus votes.
    The actual Supreme Court U.S. Code for 2011 includes a
    proper ideal of decriminalization begin considered with
    Sotomayor and Kagan “re-writing the book” on Decrim[2]:
    known as the U.S. Code of Law which gave us the pricey
    appeal to begin Grass Tax [though quite overpriced to
    pay the Federal Minimum amount on cannabis taxes 3.50$
    a gram will be more thn the maximum tax on kind bud by
    percentage maximum “you may not pay more thn 20% tax”]
    and Sotomayor and Kagan if not pressured by ONDCP may
    tell you [one at a time , thanks] the U.S.C. 2011OK is
    the advent to grass tax and may begin the Tax Act with
    confirmation to allow National Requite allotted to the
    amount wanted legal by Barney Frank and Ron Paul known
    to be [with former try at Natl Decrim Act] 100 grams :
    eco~quarter pound
    so the law following [M Word] (as ‘ma ri jua na’ is the
    illegal product by name only and cannabis may be legal)
    will not allow the “foreign govern~ing” serv to say the
    legal amount will be eco quarter pound and not the [2]:
    decrim amount 3 and a half ounces , a statement grant :
    So Contrived By Forein Power of Govern Counterfeit with
    the term of Republic Maximum Payout and lacking care on
    thought the nation will be the choice of the people and
    not granted to Plutocracy [govern by most wealthy] with
    accord we are a Democracy sometimes controlled by the :
    Power of State Dept Office of Controlling Our Free Will
    and would rather tax an eco~quarter pound 20 dollars at
    100 grams {one dollar tax for 5 grams} and someone like
    Allen St. Pierre who is accustomed to this may ask the
    Judicial Powers Being Sotomayor and Kagan if the way we
    determine the per-ordained law at Natl US Supreme Court
    may consider the Decrim2 ruling at [[2011OK]] to be OK
    with Powers Being Our Actual Govern Obama Admin and not
    the ONDCP Foreign Commission nor the State Department .
    Don’t be fooled by the control placed on Obama . He’s a
    wonderful President and our best choice for New Age . .
    And special Thanks to Ron Paul .,. yer a funny man 🙂 +
    I Thank actual Democracy and ask you read up on the uh
    Grass Tax and what U.S. Code it entails . . . . . _\|/_
    so anyway , may we legally procure cannabis product .,
    off the record I’ll bet Obama will say yes . Thanks 🙂
    Don’t Let the Man Get You Down . Peace and Pot . Bryan
    Please accept this comment as written . Thanks NORML 🙂

  4. (U.S. v. Randall). On November 24, 1976, federal Judge James Washington ruled:
    While blindness was shown by competent medical testimony to be the otherwise inevitable result of the defendant’s disease, no adverse effects from the smoking of marijuana have been demonstrated…Medical evidence suggests that the medical prohibition is not well-founded.
    Randall won his case and subsequently the federal government allowed him access to the federal cannabis supply through the Compassionate Investigational New Drug (IND) Program that was under the authority of the FDA.The criminal charges against Randall were dropped, and following a petition (May 1976) filed by Randall, federal agencies began providing him with FDA-approved access to government supplies of medical marijuana, becoming the first American to receive marijuana for the treatment of a medical disorder. Randall went public with his victory and shortly after the government tried to prevent his legal access to marijuana.
    [take notice here lol ]
    This led to the 1978 lawsuit where Randall was represented by law firm Steptoe & Johnson. Twenty-four hours after filing the suit, the federal agencies requested an out-of-court settlement which resulted in Randall gaining prescriptive access to marijuana through a federal pharmacy near his home.
    The settlement in Randall v. U.S. became the legal basis for the FDA’s Compassionate IND program
    To date, only four patients, Barbara Douglass (IA), George McMahon (IA), Irving Rosenfeld (FL) and Elvy Musikka (OR) continue to receive their medication from the federal government
    so what did steptoe&johnson know that forced government to settle out of court ? they could have appealed that case to a higher court n had it overturned but they did not ?
    so leads me to wonder since federal govt still supplies legally to these few yet denies everyone else does this not violate
    Article. IV.
    Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
    or is it that in order to regulate such things, it’d take a Constitutional Amendment. If it didn’t, then why pass the 18th and 21st ?
    It’s a de facto case that such power does NOT inherently rest in the body of the Constitution, otherwise why did they have to pass an amendment to do it? as pointed out by judge gray ?
    or is it
    Even assuming the CSA’s ban on locally cultivated and consumed marijuana is “necessary,” that does not mean it is also “proper.” The means selected by Congress to regulate interstate commerce cannot be “prohibited” by, or inconsistent with the “letter and spirit” of, the Constitution. McCulloch, 4 Wheat., at 421.
    The majority’s treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (Thomas, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9-10, the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce. Supra, at 4; ante, at 5 (Scalia, J., concurring in judgment).
    The Commerce Clause is found at: Article 1, Section 8, Clause 3 of the Constitution, and declares: the congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
    Lawyers and laity alike generally assume the Congress’s power “to regulate” commerce, includes the authority to prohibit it. Professor Friedman points out that historically, this is not how the Commerce Clause has always been understood and practiced.
    “At the Founding, and roughly 115 years thereafter, the dominant view was that Congress did not possess the authority to ban goods merely because they crossed state lines.”
    “The primary reason for granting Congress the domestic commerce power was to facilitate interstate trade and protect it against the sort of protectionist state trade policies that occurred all too frequently under the Articles of Confederation. These protectionist type laws, “proliferated in the weak economic conditions of the post-Revolutionary period, as states attempted to protect local manufacturers by discriminatory taxing and regulating domestic imports and by restricting access of the states’ vessels into local ports. These measures generated increasing concern about their effect on the national economy and political unity.”
    “It seems to have occurred to no one that Congress might act not only to limit who could provide goods and services to the interstate market, but also to limit what kinds of interstate markets could exist. In short, both positive and negative evidence suggests that the Framers did not intend, and probably did not even imagine, that the Interstate Commerce Clause would be read in such a way as to give Congress the power to restrain interstate intercourse, as well as promote it.”
    “Those who believe Congress has the power to restrain interstate commerce, generally rely on the argument that, since Congress’s power to regulate interstate commerce appears in the same sentence granting the power “to regulate” foreign commerce, the argument fallaciously promotes that the two powers should be read in pari materia, or treated the same, as a subject matter. Unfortunately this argument does not yield any evidence or standing from the Founders to support this position.”

  5. can the commerce clause be used to support the federal law which prohibits marijuana possession made legal in California?

  6. I find it twisted about the interpretation of the commerce clause and the case in which they reference giving congress the power to prohibit cannabis. It’s all based on the wheat farmer case, Wickard v. Filburn, 317 U.S. 111 (1942). This interesting case, basically said that because it effects commerce outside of local districts, and therefore allows personal use of a product to be regulated by congress. See in this case, the farmer, grew wheat, sold wheat, grew extra wheat beyond regulation and then also used it for his live stock, live stock that was to be sold on the market. In this case, the farmer was fined the value of the wheat he used, the wheat was not confiscated, and despite it not being sold directly on the market, it was used for livestock that was being sold. Wheat was not prohibited, violating excess growth was not an incarcerational offense. In fact, if he had gone on the open market to buy wheat, he could have bought as much wheat as he wanted, it literally had to do with growing and selling wheat. The farmer was both selling wheat and consuming wheat, he was in commerce with wheat.
    The interpretation that the commerce clause gives congress the power to prohibit a substance from being grown, used or sold within the origin state is at best a melestation or perversion of the constitution. The truth is, the federal government has decided not to regulate cannabis, congress has not made a single law regulating the sale of cannabis. Prohibiting a substance is not regulation of commerce, regulation literally means to make regular, to control price, to control quality and quantity, to insure a product being advertised is what it says it is.
    SCOTUS needs to revisit this, revisit it without the emotional feelings behind the substance. Ie look at this without the emotion of good or bad for use.

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