The Federalism Project

American Enterprise Institute

Ashcroft v. Raich

Does the federal Controlled Substances Act exceed Congress's commerce power as applied to the intrastate cultivation and possession of marijuana for "medicinal" use? 

California 's Compassionate Use Act (1996) allows the cultivation, distribution, and use of marijuana for medicinal purposes. It is in direct conflict with the federal Controlled Substances Act, which classifies the drug as an illegal article of commerce. Congress passed the CSA under its authority to regulate interstate trade, and the Justice Department says it trumps California regulation. The question for the Justices: does the CSA permissibly cover wholly in-state, non-commercial drug use and transactions?

Under the Supreme Court's decisions in Lopez (1995) and U.S. v. Morrison (2000), the answer should be "no." So, at least, said the Ninth Circuit have an uncharacteristic appreciation for the lessons of Lopez and Morrison. In an opinion written by Judge Pregerson, California ’s medicinal marijuana rules do not have a “substantive effect” on interstate trade, so they are not Congress’ business. “Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce.” Representing the unfriendly federalist position is the SG’s office, which argues that California ’s attempt to be laboratory of democracy in this area has nothing to commend it.)

Click here for the 9th Circuit opinion.

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