At Volokh Conspiracy, Ilya Somin: The Supreme Court Should Hear Case Seeking to Overturn Gonzales v. Raich. From the introduction:
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 It took a constitutional amendment (the since-repealed 18th Amendment, that led to Prohibition) to give Congress the power to ban in-state production and distribution of alcohol.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.
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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. …
Philip Hamburger, guest-blogging at Volokh Conspiracy, agrees: The Importance of Granting Cert in Canna Provisions v. Bondi. From the introduction:
The Supreme Court will soon have an opportunity to reconsider its Gonzales v. Raich rational-basis test. This important chance to recalibrate, as Ilya Somin recently noted, comes in the Canna Provisions v. Bondi cert. petition. The Court in Raich held that judges “need not determine whether [the regulated] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” This is, as the Court has noted elsewhere, its “most deferential standard of review,” and it raises a host of constitutional concerns.
Most obviously, the rational-basis test extends legislative power so far as to leave in doubt whether the federal government is still one of enumerated powers. (As if the substantial-effects test were not broad enough!) The Constitution’s enumerated powers are the first line of defense for our freedom—our personal freedom, not just federalism. The Supreme Court, however, in its wisdom has largely eviscerated this constitutional constraint. The Court should therefore seize upon Canna as a chance to take a modest step back toward limited government, federalism, and personal freedom.
Agreed. Raich is an affront to the limited power conception of the national government that is a centerpiece of the original Constitution. Justices O’Connor and Thomas had very strong originalist-oriented dissents. Justice Scalia’s concurrence relied (inappropriately, in my view) on the nonoriginalist precedent of Wickard v. Filburn. But Scalia, I think, later regretted that concurrence, which is inconsistent with his subsequent opinion in the Obamacare case NFIB v. Sebelius. In NFIB, Scalia rejected the rational basis test, which (as Professor Hamburger says) was central to the decision in Raich.
Sadly, though, I don’t have much hope for Supreme Court action here; the current Court has not shown much interest in federalism issues (Justice Thomas excepted, of course).
Posted at 6:11 AM