Tidbits on Drug Policy

Another two cents thrown in

Could Gonzales v. Raich have been decided differently?

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In the previous post, I mentioned that Gonzales v. Raich (2005) (a case where the Supreme Court held that “Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.”) could have been decided against the government based on the Commerce Clause alone. Well, here’s how:

The Gonzales Court’s decision that the Congress is authorized under the Commerce Clause to regulate purely local cultivation and use of marijuana is eerily reminiscent of Wickard v. Filburn, 317 U.S. 111 (1942). Here’s what the case was about:

“Roscoe Filburn was a farmer who produced wheat in excess of the amount permitted under the applicable production quota. He argued that, because the excess wheat was produced for his private consumption on his own farm, it never entered commerce at all, much less interstate commerce, and therefore was not a proper subject of federal regulation under the Commerce Clause.


The Court […] held that Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.”

Source: Wikipedia: Wickard v. Filburn

The Gonzales Court used a similar line of reasoning to discuss the possible diversion of medical marijuana into illicit markets. The Court didn’t even bother assessing the evidence of the impact on illicit interstate marijuana trade by the possible diversion of locally grown medicinal pot. In his dissent, Justice Thomas touched exactly upon this issue:

But even assuming that States’ controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. […] It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market.”

In Wickard v. Filburn, the Commerce Clause allowed federal governments to regulate locally-grown wheat because of the possible substantial aggregate effect on the interstate commerce by hundreds of thousands of farmers growing wheat intrastate. However, the potential aggregate effect of diverting all of medicinal marijuana into illicit channels would barely make a splash in the huge river of interstate marijuana trade. Thus, because of the negligible effect of locally-grown medicinal marijuana on interstate commerce, “the CSA [the Controlled Substances Act] exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.” Gonzales v. Raich (2005) (Justice Thomas, dissenting). Uhm… I mean, could have exceeded if Gonzales v. Raich had been decided differently.

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