MULTIPLE CANNABIS OPERATORS ASK THE US SUPREME COURTTO OVERTURN THE HOLDING IN GONZALES v RAICH THATCONGRESS CAN CONTROL STRICTLY INTRASTATE COMMERCE INCANNABIS
- barneyelias0
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OG article by Dale Schafer
October 29 2025
Four Massachsett’s cannabis operators have filed a Petition for Certiorari
with the US Supreme Court, asking the high court to overrule their 2005 ruling in
Gonzales v Raich (Raich), which gave Congress Commerce Clause authority to
regulate non-commercial, intrastate cannabis activities. This is a case I have
been watching, and hoping the Supreme Court would take up, to rein in the
federal government’s overreach into traditional state police powers, especially
state cannabis laws.
The Raich case is very personal to me because I was indicted, and
arrested, within two weeks of the Raich decision in June of 2005. Angel Raich
was a California medical marijuana (cannabis) patient who challenged federal
Commerce Clause authority over her for cannabis grown for her in her backyard
and to be used by her in her home. Raich’s cannabis activities were clearly
non-commercial, intrastate, and, under the clear language in the US Constitution,
not a power granted to the federal government. The US Supreme Court decided
that there was a rational basis to believe that the purely local, non-commercial
cannabis activities would have a substantial impact on interstate commerce,
thereby giving Congress the authority to regulate (prohibit) California’s nascent
medical cannabis industry.
To frame the issues here, let’s start with the US Constitution. Before 1789,
the Articles of Confederation allowed each state to impose tariffs and duties on
commerce entering and exiting each state. This was one of the many disastrous
policies from the Articles of Confederation directly addressed in the new
Constitution. The basic concept for the US Constitution was that all power rested
with the states and the people, except for the specifically enumerated powers
granted to the new federal government. Many of the battles over adopting the
new Constitution involved limiting federal power to only those specific powers
granted. If you want a better feel for these battles, read the Federalist and
Antifederalist papers from the late 1780’s.
Article 1, Section 8 of the US Constitution is a grant of federal
Congressional power. This section grants the federal government the power to
regulate commerce among the several states, and the power to make all laws
Necessary and Proper to execute the enumerated powers. As a specific limit on
federal power, the 10th Amendment gives to the states all power not specifically
granted to the federal government, or prohibited to the states. This was thought
to be clear enough to deal with legal cases arising from a team of oxen, pulling a
wagon, near a state line. Problems began to develop as the means of commerce
moved to steam ships, and rail roads, that could move commercial goods rapidly
across state borders. There were also cases in the 1800’s that limited the power
of the federal government to exercise authority where it was not granted, by
using another expressed power as a back door to exercise power, when the front
door is closed.
That brings me to the Great Depression. Prior to the New Deal of the
1930’s, the federal courts did not allow federal intervention into traditional state
power areas, because the Constitution was read literally. President Hoover
clearly did not believe he, or the federal government, could enact federal laws to
help individuals, or businesses, outside of the clearly enumerated federal
powers. FDR, who was the Governor of New York before he was elected
President, used the powers of the state to directly intervene in New York
resident’s lives. When FDR ascended to the Presidency in 1933, he believed
extraordinary measures were needed to protect and preserve the US
government. He pushed through Congress many federal programs that helped
desperate people to survive. Many of these programs were found to be
unconstitutional and struck down. FDR threatened to “pack the court” with new,
more favorable justices, and voila, the US Supreme Court changed its position
on the New Deal, and a new era of Constitutional interpretation had begun.
It was in this era of Constitutional jurisprudence that the US Supreme
Court decided the case of Wickard v Filburn (Wickard), a 1942 decision that
expanded the power of Congress to control intrastate commercial activities. Mr.
Filburn was a wheat farmer who grew a few acres of wheat for his own personal
use on his farm. Think animal feed and bread making which was not intended to
cross a state line. Wickard was the Secretary of Agriculture who was enforcing
the Agricultural Adjustment Act of 1938, which allowed the federal government to
control ALL wheat production, including what Mr. Fulburn was growing. The law
was challenged, and the US Supreme Court held, that Congress could control
any activity that had a “substantial impact on interstate commerce”. The door had
been opened, and the stage was set, for the federal government, specifically
Congress, to exercise seemingly unfettered Commerce Clause power without
any apparent Constitutional guardrails.
The Wickard case was the legal foundation upon which the Raich case
was decided. In 2005, there were no states with commercial cannabis laws.
California had passed Prop 215 in 1996, which allowed a defense to state
cannabis criminal charges. California had also passed a State law, SB 420,
which allowed “collective and cooperative” cultivation of cannabis, within the
nascent medical cannabis industry. Angel Raich asked the court, through a civil
action, for a declaration that her non-commercial, intrastate cannabis activities
were ourside the authority and control of Congress. The Raich court took the
holding in Wickard, and decided that if there was a rational basis to believe there
would be a substantial impact on interstate commerce in cannabis, Congress
could control even non-commercial, intrastate activities. Justice Clarence
Thomas, in a scathing dissent, asked the important question...”is the 10th
Amendment a dead letter?”
The Petition for Certiorari from the cannabis operators in Canna Provisions
Inc., et al v Bondi (Canna Provisions) questions whether the rational basis
standard of review is appropriate in a case where Congress has clearly
exceeded its grant of interstate commerce power? When courts evaluate whether
an exercise of governmental power is constitutional, the courts use recognized
standards of review. The most deferential standard is the rational basis test
which asks whether the exercise of governmental power has a rational
relationship to the exercise of a legitimate governmental power. The
governmental almost always wins this test. The most exacting standard is the
“strict scrutiny” test which requires the government to prove that the exercise of
governmental power is necessary to achieve a compelling state interest. The
government almost always loses the strict scrutiny standard. So what standard
should apply to a case where the Congress has exceeded its grant of interstate
commerce power? Canna Provisions argues that the rational basis test is clearly
inappropriate.
It is also argued by Canna Provisions that the circumstances surrounding
the cannabis industry have drastically changed since Raich was decided. In
2005, there was no legitimate commerce in cannabis. The court felt that allowing
cannabis to be lawfully grown would frustrate Congress’s prohibition and make it
difficult to keep local cannabis out of interstate commerce. As of today, over half
of the states have legal cannabis industries with track and trace that allows for
control (at least that’s the argument) of local cannabis in interstate commerce.
Also, and importantly, the federal government has allowed state-level cannabis
industries to grow, and has actively prevented federal enforcement of lawful local
cannabis operators. Federal cannabis policy is clearly not what the court faced in
2005. I will also point out that the current makeup of the Supreme Court has
expressed a willingness, if not a desire, to return to pre-New Deal jurisprudence
for many issues, including Commerce Clause authority.
The Petition for a Writ of Certiorari is the opening request for the Supreme
Court to take the case for review. Since this is a discretionary act, the court could
simply decline review. If the court accepts the case, Pam Bondi will then respond
to the matters raised. How hard the federal government will fight to oppose this
case remains unknown. Canna Provisions has enlisted the legal services of
David Boies, one of the top litigators and Constitutional scholars in the country.
Which attorneys will be leading the government’s efforts to respond remains
unknown, but given the caliber and quality of recent federal government
attorneys, this could be a clown show. This case was also appealed without
pretrial workup so there are basically no facts established because the District
Court granted the federal government’s motion to dismiss. What the court has
before it is the pleadings from Canna Provisions, which are legally presumed to
be true. The court could send the case back down for further proceedings to
establish facts after contested hearings. The court could also throw out the Raich
case and set a new standard for the federal government to extend federal
commerce authority into traditional state police powers, protected by the 10th
Amendment. I don’t know where that new standard would leave us when all the
dust settles. Any way the court addresses this will leave many gnashing their
teeth. Fasten your seat belt because this one could be big.
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