The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
First Circuit Rejects Constitutional Challenge to Federal Marijuana Prohibition
Like it or not, Gonzales v. Raich remains good law, and federal prohibition is constitutional under current doctrine.
In 2005, in Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the federal prohibition of the cultivation, distribution, and possession of marijuana, even where legal under state law for medicinal purposes. Many did not like this decision (including me), in no small part because it embraced an unnecessarily capacious understanding of Congress's power to reach intrastate conduct through the Necessary and Proper Clause. While the Court's enumerated powers holdings in NFIB v. Sebelius may have constrained some potential applications of Raich, the underlying decision remains good law.
With Raich on the books, it should be no surprise that the U.S. Court of Appeals for the First Circuit rejected newly filed constitutional challenges to federal marijuana prohibition in Canna Provisions v. Bondi. Specifically, the Court rejected both the claim that federal marijuana prohibition exceeds the scope of Congress's powers under the Interstate Commerce and Necessary & Proper Clauses, as well as a claim that federal marijuana prohibition violates the Due Process Clause of the Fifth Amendment.
The challengers had sought to argue that intervening events, including the widescale legalization of marijuana for medicinal or recreational purposes under state law and Congress's failure to fund and support more aggressive drug enforcement, meant that Raich's holding no longer controlled, but the First Circuit did not buy it.
The reality remains that if federal marijuana prohibition is to end, so as to allow real marijuana federalism, it will take an act of Congress. Federal drug policy will not be made in the federal courts.
