Cannabis Musings - October 3, 2023
Cannabis Musings - October 3, 2023
Once again, if you're gonna challenge the constitutionality of federal cannabis laws, get ready to lose.
Friends, just like it’s a never good idea to get involved in a land war in Asia, it’s generally not a good idea to challenge the federal government over its cannabis laws. We’ve talked about this before – you’re almost certainly going to lose, so aren’t your resources better used elsewhere? Law360 reported (note: paywall) another example of this yesterday - the U.S. Supreme Court declined to hear a challenge to the constitutionality of the Controlled Substances Act’s applicability to cannabis.
(Trigger Warning – heavy lawsplaining content ahead.)
Earlier this year, a federal appellate court upheld a federal district (trial) court’s dismissal of a challenge to Mendocino County, California’s denial of the plaintiffs’ application for a cannabis cultivation permit. The plaintiffs claimed on appeal (among other things) that the trial court wrongly dismissed their federal constitutional challenges (substantive due process and equal protection), but the appellate court quickly rejected that argument, looking at the Supreme Court’s decision in Gonzales v. Raich from 2005.
That 2005 case basically said that the federal Controlled Substances Act applied to intrastate cannabis (in particular, state-licensed medical cannabis) because it affected interstate commerce, which Congress has the power under the constitution’s Commerce Clause to regulate. Sadly, Raich didn’t involve our old friend, the dormant commerce clause, a perennial favorite here at Cannabis Musings.
Among other things, the plaintiffs suggested that the appellate court should “reconsider Raich’s holding because more states have legalized marijuana in some form. But … a greater supply of marijuana now exists in that national market as a result of state legalization.” Besides, appellate courts usually don’t like to overturn Supreme Court precedent (it’s my prerogative, the Supreme Court might say).
So, the plaintiffs filed a Writ of Certiorari (a request to consider an appeal) to the Supreme Court asking it to revisit Raich’s conclusion that “all cannabis is part of interstate commerce.” On my read, their argument effectively boiled down to an appeal to reality:
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. … A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the government’s piecemeal approach.
Nonetheless, the Supreme Court doesn’t need permission and makes its own decisions (why don’t they just let it live?), such as declining to hear this appeal. The Court denies about 99% of requests for appeal, so I wouldn’t read too much into that denial. (Sadly, Justice Thomas didn’t dissent this time, unlike in 2021 when he delightfully dissented to a denial of an appeal in a different cannabis case, questioning the regulatory status quo: “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”)
Why does this matter? Well, it continues to support my point that suing over the constitutionality of well-settled federal cannabis regulations and caselaw is, in my non-legal opinion, vet helfen vi a toiten bonkes (“like cupping a dead body” (i.e., it won’t help)). The reality of the current U.S. cannabis landscape doesn’t really change the fundamental basis for the findings in all of these cases. It’s a noble effort, but I believe that the industry’s efforts and resources are better used in changing the narrative and working the political process to control its own destiny (the court of public opinion?).
It also may have some implications for the ongoing lawsuits challenging state prohibitions on interstate cannabis commerce under the dormant commerce clause, a court-invented doctrine based on the Commerce Clause. The denial of cert means that Raich remains untouched, and there, the Court held that an interstate market for cannabis exists, even though it’s illegal. That’s a key point in the pending challenges, and one of the cases on appeal is in front of the same appellate court (Ninth Circuit) that rejected the Mendocino County case. At the same time, another federal appeals court recently decided that, although there is an interstate cannabis market for Commerce Clause, there isn’t one for dormant commerce clause purposes. This is an issue that’s going to continue to come up, and would be made even more interesting if the Department of Justice were to issue a “Cole Memo 2.0” advising that it’s not opposed to interstate cannabis commerce (as the State of California is apparently requesting).
Even when nothing happens, something happens.
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© 2023 Marc Hauser and Hauser Advisory. None of the foregoing is legal, investment, or any other sort of advice, and it may not be relied upon in any manner, shape, or form.