Is Cannabis Prohibition Unconstitutional?

A federal appeals court recently punted on a case brought to it regarding the unconstitutionality of a Supreme Court case decided 20 years ago. Legal experts predict the verdict will land back in front of the Supreme Court. The balance of federal cannabis prohibition could potentially be at stake if so, begging the question, is the current state of cannabis prohibition unconstitutional?

The Constitutional Issue at Hand

The U.S. Supreme Court ruling of Gonzales v. Raich in 2005 established the federal government’s power to enforce the illegality of cannabis commerce even in states with medical programs under the U.S. Constitution’s Commerce Clause. Twenty-four states have now legalized cannabis statewide with adult-use programs, with even more that have gone medical. A lawsuit originally filed in Massachusetts in 2023 claimed that the 2005 high court ruling is essentially nil as the U.S Department of Justice (DOJ) has all but ceased to control state-run marijuana programs, including medical and adult-use programs.  

Why Hasn’t the Federal Government Interfered with State-run Medical & Recreational Cannabis?

The federal government, state lawmakers, and canna-businesses reached an understanding after Congress passed the Rohrabacher-Farr amendment in 2015. This amendment, included in a congressional spending bill, bars the Department of Justice from using federally allocated funds to interfere with state-legal medical cannabis programs.

Federal lawmakers have consistently renewed the amendment since it passed, protecting state-run medical cannabis programs and patients from federal legal consequences, even though the Drug Enforcement Agency and the Controlled Substances Act still classify cannabis as a Schedule I drug.

The Rohrabacher-Farr amendment’s protection has superseded the impact of the Gonzales vs. Raich establishment of federal oversight of interstate cannabis commerce. The writer based the 2023 filing on the fact that, since 2014, states have efficiently run adult-use cannabis programs without federal interference.

District, Federal, and Potential Supreme Court Rulings

The lawsuit with the potential for Supreme Court review was originally filed in the U.S. District Court of Massachusetts by several parties–Canna Provision and Wiseacre Farm, Verano Holding Corporation, and the CEO of Treevit, Gyasi Sellers. The district judge acknowledged the plaintiffs’ valid points and agreed to reconsider the ruling, but he ultimately upheld the 2005 Supreme Court decision as binding precedent.

First Circuit of the U.S. Court of Appeals

The same suit was then appealed immediately, where it went in front of the First Circuit of the U.S. Court of Appeals, with plaintiffs arguing again that Congress has been non-existent in eliminating or regulating medical and adult-use programs anywhere. They also went further by declaring the 2005 ruling unconstitutional. The DOJ’s counterargument was that if they are ever led to believe that states can’t efficiently regulate interstate commerce, then they will step in and interfere with interstate commerce and the states’ rights. 

A 3-judge panel concluded that the Rohrabacher-Farr amendment defined protections too narrowly and did not apply to regulating the sale and cultivation of recreational cannabis. They also maintained that the CSA still mandates federal oversight of non-medical cannabis as well. Despite the ruling, the plaintiffs still intend to successfully petition the Supreme Court for an appeal.

Justice Thomas & Supreme Court Review

Boies, Schiller, and Flexner are the litigating attorneys for the case, a firm known for taking many cases to the highest level for review. David Boies, one of the litigators, is a prominent attorney who has had several cases brought in front of the Supreme Court–most famously Bush v. Gore regarding the contested 2000 Presidential election results. 

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Bois has several things working in his favor–one of them is the openness of Supreme Court Justice Clarence Thomas to hear arguments. Comments by Thomas in 2021 mention that the ban on cannabis could no longer be applicable or even needed. He pointed to inconsistencies by the federal government in both messaging and enforcement concerning “local use of marijuana”. 

READ: New DEA Administration Is Silent On Cannabis Rescheduling

Additional Factors Regarding Unconstitutionality

States’ rights are a complementary part of federalism, so acknowledging the rights of every adult-use state in the union is another important update to the 20-year ruling. Congress also showed its contradictory enforcement of cannabis by allowing for a medical cannabis bill to pass in Washington, D.C., a federal district, in 2010. Congress even continues to allow for expansion of medical marijuana patient rights and easing of regulations in D.C., with no fight.

Rescheduling of Cannabis to Schedule III

The previous Biden administration took strides to get the DEA to review the potential rescheduling of cannabis from a Schedule I drug to Schedule III, a less restrictive classification. An extensive review continued on into the new Trump administration, where it seems to have stalled. 

This review has the potential to strip away much of the research restrictions and harsh penalties associated with marijuana; however, the currently far-right administration most likely stands in the way of progress on this issue. Bois’s case in front of the high court can only be helped by successful rescheduling at some point soon. 

So the Question Remains, Is the 2005 Supreme Court Ruling Unconstitutional?

Bois and company have some strong points that even district and Supreme Court justices say warrant a re-evaluation of Gonzales. The way the Supreme Court operates in recent years has been one of sheer dominance by the court’s six conservative justices. Longstanding rulings have gone the way of the wind courtesy of conservative majority court opinions heavy on pretzel logic–no precedent is safe, even Gonzales. 

Congressional and DOJ oversight is difficult to justify given that adult-use and medical cannabis states are regulating intrastate commerce under their constitutional state rights within a federalist system. These states have been operating successfully and regulating without a hitch for years. Why does Congress continue to pass the Rohrabacher-Farr amendment if federal agencies consistently ignore its core protections?

Alcohol was once prohibited and then allowed by law again; the same should be done for federally legal cannabis, regulated by each state. Cannabis still carries significant stigma compared to alcohol, which may cause some federal lawmakers to balk at ending prohibition. 

Gonzales needs Supreme Court review to at least get its scope and purpose modernized, following the currently massive cannabis market and landscape in America. The constitutionality of the matter should allow all states to be personally in control of restricting interstate commerce while regulating their own interstate commerce when it comes to weed. The longstanding non-presence of the federal government regarding such actions is just an antiquated obstacle in the way.