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. 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.

  2. 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.

  3. 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!!!

  4. 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.”

  5. 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?

  6. 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.

  7. 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.

  8. 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.

  9. Really? I have never understood why the government has made marijuana illegal in the first place. Now they insist on spending thousands of dollars and man power to go after legal state approved dispensaries. “Easy targets” while the smugglers and other serious drug dealers continue to profit, and they continue to cry poor mouth and threaten the senior citizen’s medicare benefits. Which is their own money they have paid into the m/care system to begin with. Doesnt it make perfect sense that the fed gov could save thousands of dollars by allowing the states to regulate the marijuana use and distribution. Save on federal officers time, drug raids, court, prosecuters, court personel, money to run prisons, and continue to make the criminals richer not to mention the tax revenue that would be generated from the sale. So they would not only save thousands of dollars but generate more income. It has been proven that marijuana is safer than alcohol but the systems wishes to continue to prosecute hard working law abbiding citizens then go out and drink alcohol because “they had a hard day”. But it is not ok to relax and ease the stress with marijuana a 100% natural substance. Hmmm!!

  10. Marijuana does’nt need permission to be apart of any culture-it already is,has always been, and always will be. Those feds might have notice the hacking parliment club sooner if they were not too busy chasing weed. Or did they already know? the weed chase could be a diversion which is hiding their intentions.

  11. I PERSONALLY think its time to REBEL, and by rebel, I mean I think we should follow the advice of George Washington and SOW IT EVERYWHERE! I think everyone who smokes cannabis should go on a Johnny Appleseed adventure throughout the country planting cannabis seeds everywhere by the billions in wide open space, in every forest, in every property. I think the key to ending prohibition is making cannabis ubiquitous.
    I think far too many people worry about potency and strength of it, bring it indoors, and create this artificial scarcity. Of course the cops are in on selling drugs, thats why they create a black market situation so they have so much more assets to seize. But the fact is, they are hindering progress in medicine due to GREED and it makes me so fucking ANGRY I could CRY.

  12. There’s one damned thing for sure at 73.”
    You “earn” your seniority [old age]. “It’s not a gift.” Every living thing on this planet – if they play their cards right – will receive – free of charge – “Old Age.” To have “old age” is one thing – to keep it is another – you have to “earn it.” You must manage it – on a daily basis. Be very kind to your longevity [old age] – because – “If you fuck with it – it will flat ass fuck with you.” But – my Sacrament, medicine, and food see me through “the results of my actions – consequence of my deed(s)” – which in most cases is what God told me not to do – but – I did it anyway – “I hate the way I love it.” Neither do I need any laws – because – I possess a “Conscience” – which I refer to as “L.” Nobody can punish me – like – I can punish myself – while having a good degree of fairness and justice – I know when the punishment fits the crime – and – should be no greater.
    So this is my testament. Standing shoulder to shoulder my God and my country – “My Sacrament [Manna], medicine [Qualified Patient] , and food [Hemp] – “see me through” – that which would have otherwise been a difficult day. If – what you are doing is just a simple matter of – “you telling me – I say – I say – you telling me” – what I can or can’t do or say – once again we echo our battle cry throughout the universe – “KOFF!”

  13. Texas Republican Lamar Smith needs to be voted out of office. A new House Judiciary Chairman needs to be put in place. The people need to find out who sponsors this man and then write them telling them we will no longer support them. It’s amazing good laws can be held up by one asshole. Some political positions have too much power.

  14. Because there hasn’t been a legal(De Jure) session of Congress since 1861 all laws that have been passed since 1861 are in conflict with the Supreme Law. This means that we can willfully disobey any law that was passed since 1861, and do it with impunity, because the laws never were laws!!! U.S. Supreme court Marbury V. Madison 1803!!! This means Marijauna is not and has never been ILLEGAL!!!!

  15. The government of the United States has become incapable of governing.
    Even with the current fiscal crisis, our government cannot even bring itself to talk about legalization, which would generate substantial additional tax revenues which almost nobody would object to.
    Senator McConnell made it clear last week that personal and partisan agendas are more important to Congress than the national interests.
    What our “leaders” don’t seem to understand is that their war on marijuana causes a large segment of the citizenry to feel alienated from the government, and to view the government as hypocritical, corrupt, dishonest and stupid, and which will ultimately thereby lead to their downfall.

  16. well if it makes so much sense. why doesn’t someone just take this through the court..I don’t understand that..

  17. So how do we win over the over reaching of Federal authority? Fire on Fort Sumter? States Rights!!!

  18. Lamar Smith is just one more wall to jump over. All my letters that I have wrote to my FL leaders seem to not take marijuana as a serious topic. Like Bill Young, they sweep the subject inder the rug.
    This has to stop!

  19. Man, don’t ya just love the hypocrisy? All manner of people are completely willing to hide behind the constitution and cite their civil rights as allegedly granted by the constitution whenever it suits them, and the right people with their hands in the right pockets can basically get away with murder under the guise of “constitutional rights”. On the other hand, all those same people claiming they can say what they want and have their guns and booze cause of their “civil rights” are perfectly willing to deny those same rights to people who want to practice something they don’t believe in.
    This is one of the issues related to cannabis that I’m most concerned, more accurately most frightened about not mostly due to my support of legalization, but far more because since I was a child I always believed that in the U.S., no matter how much people disagreed over things, that there was always going to be certain rights that everyone would have and if infringed upon would result in major backlash from the people. I also was always taught and always believed in the supreme court as a place separate from public biases and prejudices where beliefs didn’t matter for anything, and they would always, no matter what, do right by the constitution. Their job, after all, is to determine the constitutionality of laws, not to decide whether they personally agree with laws. What do you do when the be all end all of constitutionality bends the constitution to their will?
    Unfortunately any illusions have long since been shattered by our government, which I hear once upon a time had people’s well being in mind…and now seems to be for sale to the highest bidder.
    This is something that should be deeply disconcerting no matter what your position on the topic of cannabis. That has nothing to do with what’s wrong here. People should unconditionally speak out when constitution is being utterly manipulated, no matter how offensive or disagreeable they find the issue. Where the hell does it stop? Where does it end? Sure, a lot of people are fine with this now, but this is an extremely dangerous precedent to set. People don’t care because it doesn’t affect them, but what happens the next time the government/supreme court decide they don’t like something? What happens when they twist around laws regarding free speech so that they can persecute people who speak out against them? What happens when they all disregard the constitution and people’s precious guns and booze gets taken away?
    The apathy today is truly shocking and deeply, deeply unsettling. The fact that a large portion of people can just sit around and let anything blatantly against the bill of rights go unchallenged is disgusting, and considering much of the catalyst for change in history and checks in the power of past oppressive governments has been uprisings and revolutions, I honestly wonder if it’s possible that one day we’ll find ourselves in a borderline totalitarian government, without any rights wondering why the hell we didn’t stop it when it all started.
    Although I may sometimes get carried away when it comes to prohibition, this is one issue I feel has the potential to become as serious as my gut tells me it could get. If it never happened again to any other rights, then it would still suck and be completely wrong, but it wouldn’t be the end of the world. On the other hand, if this is only an early incident in what becomes a more common practice, it could quite possibly end much worse, especially if people responded in this way to every breach of our rights when the gov. decides that it doesn’t have to follow the constitution, cause it isn’t other ppl’s problem, right? Besides, even if the government took away all our rights, Americans today are far too obese, lazy, stupid and apathetic to fight back anyways. In one of my favorite quotations of all time:
    First they came for the communists,
    and I didn’t speak out because I wasn’t a communist.
    Then they came for the trade unionists,
    and I didn’t speak out because I wasn’t a trade unionist.
    Then they came for the Jews,
    and I didn’t speak out because I wasn’t a Jew.
    Then they came for me
    and there was no one left to speak out for me.

  20. Zuke, what is even more disturbing is the fact that a large portion of our citizenry do not even know what the Bill of Rights is, or why it is important. This is the lynchpin that allows all of the other abuse to follow.

  21. Zuke: Unfortunately, sometimes, as in my case, one needs to be arrested by a crooked cop and travel through the corrupt criminal justice system before they ever become active or even give a damn.

  22. Yes, the light-bulb right is necessary for legalization, but so is the taxing-for-government left — from the sixties, now in their sixties. A broad coalition is our only hope.
    I’m a lawyer, and without hope that the courts will solve this problem. Victory must and may come only democratically, not judicially. That’s the reality.

  23. I’m tired of D.C. telling us how to run our lives. They can’t even keep things in Congress running. It’s like they all want somebody else’s stuff to get cut, you know, so the easiest cuts can fan out from cannabis legalization. Simply make the cuts while it’s still illegal at the federal level and recommend full withdrawal on the Feds part of being opposed to legalization. Considering they are not opposed to prohibition, it essentially puts them in a neutral position, so that the setting is right for the revenue collection argument that leads to legalization of cannabis. American Exceptionalism

  24. Jim Sanders im intrigued to find out more about the 1861 law. Especially after sying that all laws written after are void basically. Unfortunately im looking and can not find it. so next time your on and if you read this please be more specific so that others can agree/ disagree due to the information that is handed to them.

  25. So, if all of these Constitutional amendments are being violated, when will this be taken to the Supreme Court? Who (or what organization) will and how will it be done today? It has to be done. Is no one going to do it? If it’s not done more rights will continue to be taken away and soon our country will be completely controlled by one sovereign ruler again after 235 years!

  26. My first great disillusionment with government came when, as a child, I watched President Eisenhower tell the nation that we didn’t send a spy plane over Russia, and that they were lying. I believed him. I trusted him. The next day the Russians released photos of the spy plane. I was shocked. How could our government and our President lie to us?
    The next great disillusionment came in my late teens, in college, when I tried marijuana and realized that, once again, the government had lied to us. I’ve been very skeptical of anything that comes out of the mouths of politicians ever since and I don’t trust law enforcement or the courts to serve the causes of justice or truth. Those lofty principles are subverted by money and the desire for power. Justice is a commodity, bought and sold. Truth is trumped by ideology and opinion.

  27. “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. ”
    What I’d like to know is how the judiciary, an arm of the central government, can impartially interpret the 10th Amendment. Don’t they have a vested interest (we KNOW they do)? Doesn’t the State have the right to reject laws that they deem unconstitutional and should not ‘we the people’ have the right to decide? Wouldn’t we be better served by a coalition of States’ representatives to evaluate and determine such questions? It just makes no sense to me how one side of a conflict has the ‘authority’ to decide which side is correct.

  28. “This means Marijauna is not and has never been ILLEGAL!!!!”
    Sure, Jim. Go tell that to the tens of thousands of users sitting in 6 x 8 cells. I don’t disagree with you but we all know that the old saying that “might makes right” is in full force and effect.

  29. The fact that Congrss can regulate non-economic activities because they are part of a larger class of commercial activities that Congress regulates, is a dangerous proposition. What can’t Congress regulate? Fortunately, we have the 10th Amendment.
    This is an excerpt of the Opinion authored by Justice Stevens:
    “As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market — and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.[3] 41*41 See ante, at 25-33.”

  30. All folks who are angry about this issue should contribute to whoever runs against Congressman Smith. His district includes Austin so he may be vunerable. NORML should target him as the NRA targets politicians against the 2nd Ammdt. I believe if a candidate is for this bill and generally conservative on other issues then he/she can defeat Mr. Smith. Heck isn’t Willie Nelson from here. Even if Willie isn’t from here he could help getting Mr Smith unseated during the next cycle. We need to unseat only a few politicians and they will get the meassage. Just a thought.

  31. In regards to the question about when the 10 can come into play, I think if the states Attorney general can champion that stats medical marijuana law then perhaps it will win. These suits must go through the circuit of appeals. Perhaps Governor Christie who just approved the year overdue medical marijuana bill will champion that, he stated he wanted assurance there would be no raids if he did and was given none. I hope he can surprise us, especially with the tea party obsessing him.

  32. Alcohol and Hemp are both very dear to Americans. Both can be easily produced by American farmers. Both can be used as alternative fuels. Both were once common currencies in America. You could pay your taxes with hemp and trade alcohol for most anything.
    Big Oil has its’ hands in this, strangling the American economy from the from the office of the Treasury Department. By outlawing hemp and alcohol production in America, Oil barons have cut out a major competitor, you. The $13.50 Federal tax levied upon a proof gallon of alcohol is unconstitutional. How can a farmer hope to compete with $4 gas when he must pay $13.50 per gallon tax? Wake up America!

  33. Why bash on light-bulb laws and water conservation… those new lights grow pot for less money, and water will be available for them.
    don’t sound so paranoid, heh heh.

  34. I wish I was a legal intern at NORML and a 2nd year law student. When I was a Philosophy student the world was in front of me and everything was possible. Now so much has gone by…

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