In the massive federal lawsuit brought against Jeff Sessions, et al., (Washington v. Sessions, currently pending in the Southern District of New York), plaintiffs seek a declaration that the classification of cannabis as a Schedule I drug is unconstitutional.
Plaintiffs allege that the Controlled Substances Act, as it pertains to cannabis, infringes upon their fundamental, constitutional rights to: life, liberty and property; equal protection under law; preserve one’s own health and life; freely travel between states and onto federal (including military) lands; petition the government to redress grievances; and engage in free speech.
But political conservatives are likely eyeing a separate aspect of the lawsuit, that which challenges congressional power to regulate cannabis under the Commerce Clause of the U.S. Constitution. The Commerce Clause gives Congress the power to regulate, among other things, commerce “among the several states.” It has been interpreted by courts to include: “economic” activity that, “viewed in the aggregate,” “substantially affects” interstate commerce. Under the 10th amendment to the Constitution, matters not expressly granted to the federal government are reserved to the states. This balance of power between the federal and state governments constitutes the most basic tenet of federalism upon which the U.S. was built. Historically, the Commerce Clause has provided Congress with the authority to expand federal power and has served as the jurisdictional predicate for federal legislation, such as the Civil Rights Act of 1964 and the Controlled Substances Act. While the Supreme Court has placed few limits on federal commerce power following the New Deal Era, today’s Supreme Court has expressed deep concern that federal commerce power has been misinterpreted in the past, in a manner that suggests it is limitless, and that the absence of limits infringes upon states’ rights, in violation of the Constitution.
Much of this concern arises out of the decision in Gonzalez v. Raich (2005), in which the Supreme Court held that Congress has the authority, under the Commerce Clause, to regulate purely intrastate home-grow, possession and consumption of medical cannabis, recommended by a state-licensed physician and in full compliance with state law. According to the 2005 decision, it is “rational” to conclude that such activities, viewed “in the aggregate,” would substantially impact the interstate black market for cannabis — precisely what the Controlled Substances Act was designed to prevent.
In their lawsuit, plaintiffs argue that congressional regulation of purely intrastate, non-economic cannabis activity (such as home-grow, possession and consumption in strict accordance with state law), “transcends even the most hyper-elastic construction” of federal commerce power, threatening federalism itself and offending the text and structure of the Constitution; and further, that states should be free to experiment with cannabis policy in a manner that comports with what their respective constituents seek.
In a motion brought by the federal government in October to dismiss the lawsuit, defendants argued that, in view of Raich, the court is required to reject the plaintiffs’ Commerce Clause challenge. The defendants’ argument, however, presupposes that Raich was decided correctly.
As reflected in their opposition to the defendants’ motion, filed in early December, plaintiffs are asking the court to overrule the Raich decision. In this regard, plaintiffs assert that the court in Raich should have never considered the plaintiffs’ non-economic activities — those activities that precede a single economic transaction — “in the aggregate” for purposes of determining whether they substantially affect commerce, and that the establishment of “rationality” as a basis to measure congressional power, was erroneous.
In addition, the plaintiffs’ lawyers have indicated their intention to rely upon the doctrine of Desuetude. By Deseutude, laws which serve “no modern purpose” and have become “obsolete,” consistent with a shift in public morality, are void. Accordingly, in their opposition, the plaintiffs state: “for years, the regulation of State-legal cannabis activity under the CSA has waned” under the Cole and Ogden memoranda, FinCen Guidance and multiple funding riders that prohibit the government from deploying federal funds to combat state-legal medical cannabis (and hemp) activities. And ultimately, “the Federal Government has ceded the entire enforcement of State-legal cannabis activity exclusively to the States, creating an intrastate market that falls outside the … federal commerce power.”
Congressional regulation in this environment would be tantamount to a police officer waving someone through a red light, while simultaneously threatening them with a ticket on the side — an irrational proposition. Given that 62% of the U.S. population lives in a jurisdiction in which some form of cannabis is legal, plaintiffs argue that Congress has abandoned its own classification of state-legal cannabis as a Schedule I drug under the Controlled Substances Act, cannot possibly believe cannabis is unsafe, and is thus precluded from enforcing the Controlled Substances Act as it pertains to cannabis.
Lauren Rudick represents investors and startup organizations in all aspects of business and intellectual property law, specializing in cannabis, media and technology. Her law firm, Hiller, PC (www.hillerpc.com), is a white-shoe boutique firm with a track record for success and handling sophisticated legal matters that include business and corporate law.