The Supreme Court Should Hear Case Seeking to Overturn Gonzales v. Raich

A recent petition for certiorari in the case of Canna Provisions, Inc. v. Bondi, asks the Supreme Court to overrule its terrible decision in Gonzales v. Raich (2005), which held that Congress’ power to “regulate commerce…among the several states” gives it the authority to forbid the possession and distribution of medical marijuana that had never crossed state lines or even been sold in any market within a state. The Supreme Court should take the case, and make use of the opportunity to overrule Raich.

In my view, Raich is one of the Supreme Court’s worst-ever federalism decisions. I laid out the reasons why in a 2006 article that was part of a Cornell Law School symposium about the ruling, published soon after it came down. I won’t go over the issues in detail here, but I will note that I continue to believe the decision is awful for all the reasons I stated then. It took a constitutional amendment (the since-repealed 18th Amendment, that led to Prohibition) to give Congress the power to ban in-state production and distribution of alcohol. The same logic applies to marijuana. In-state possession and distribution of marijuana is not interstate commerce, and therefore not within the power of Congress, absent enactment of an appropriate constitutional amendment.

A prominent law professor once asked me if I would ever “get over” Raich. I said I would get over it on the day the Supreme Court overrules it.

The petition was filed by Boise Schiller Flexner, a prominent appellate firm, and the lead counsel is “superlawyer” David Boies. As he and his colleagues lay out in the cert petition, Raich fits the Court’s criteria for overruling precedents, in so far as the case’s reasoning is badly flawed, and it has not generated much in the way of strong “reliance” interests. If anything, reliance cuts the other way, as more and more states have legalized marijuana under their state laws, thus heightening conflict with continuing federal prohibition.

It’s worth noting that eight of the nine justices who participated in the Raich decision have since left the Court. The only one who remains – Clarence Thomas – wrote a strong dissent in Raich, and has recently argued it should be overruled. As Justice Thomas pointed out in a statement regarding the Court’s refusal to consider the 2021 Standing Akimbo case, “the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich.” Thomas’s 2021 statement explains that the current federal marijuana prohibition regime includes all kinds of restrictions on enforcement of the federal law, and also creates strange anomalies such as that marijuana businesses that have been exempted from direct enforcement of the federal ban are nonetheless subject to criminal penalties for such things as hiring security guards to protect themselves.

I am not alone in urging the Court to take this case and overrule Raich. Amicus briefs filed by my colleagues at the Cato Institute (I am the Simon Chair in Constitutional Studies at Cato, but was non involved in this brief), Americans for Prosperity, and the Pacific Legal Foundation* (on behalf of one of their clients), urge the same thing.

These are all libertarian or conservative organizations. But, in recent years, the ideological valence of a number of constitutional federalism issues has shifted, in part in response to the first and second Trump Administration’s many egregious actions. I wrote about a number of these in a 2019 Washington Post article covering such issues as sanctuary cities and conditional spending. These have become even more significant under Trump II, arising on issues such as immigration, and the administration’s attempts to use conditional spending grants to expand federal control over universities. These developments have led many liberals to take a more favorable view of judicial enforcement of constitutional limits on federal power.

There has not – so far – been a comparable shift on the issue of limiting Commerce Clause authority. But perhaps the many awful abuses associated with the War on Drugs might help work a change. I outlined that possibility in my 2006 article on Raich, where I also suggested that judicial enforcement of federalism would be more successful and secure if it enjoyed broader cross-ideological support.

*PLF is also my wife’s employer, but she was not involved in drafting the amicus brief in this case.