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  • Laurence M. Vance

Neither Necessary nor Proper

It was sixteen years ago last month that the U.S. Supreme Court, in the case of Gonzales v. Raich (2005), ruled that the Controlled Substances Act (21 U.S.C. 801) did not exceed the power of Congress under the Commerce Clause as applied to the intrastate cultivation and possession of marijuana for medical use.

In this case, Angel Raich and another defendant used marijuana for medical purposes in accordance with California’s 1996 Compassionate Use Act. The federal government objected, based on the Controlled Substances Act (CSA), which classifies marijuana as a Schedule I controlled substance with “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use of the drug under medical supervision.” As a consequence, the Drug Enforcement Administration (DEA) seized and destroyed a number of cannabis plants.

The defendants sued the federal government in 2002, claiming that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, and the Ninth and Tenth Amendments. A federal district court ruled against the defendants. However, the Ninth Circuit Court of Appeals reversed the decision and ruled that the CSA was unconstitutional as it applied to intrastate medical marijuana. The government appealed the decision, and the case was argued before the Supreme Court in November of 2004. The 6-3 opinion, which was delivered by Justice Stevens, with Justices Rehnquist, O’Connor, and Thomas dissenting, effectively says that the federal government has the authority to prohibit marijuana possession and use for any and all purposes.

In his brilliant dissenting opinion, Justice Clarence Thomas made several key points about the Commerce Clause of the Constitution and federalism:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. Even assuming the CSA’s ban on locally cultivated and consumed marijuana is “necessary,” that does not mean it is also “proper.” The means selected by Congress to regulate interstate commerce cannot be “prohibited” by, or inconsistent with the “letter and spirit” of, the Constitution. One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.

So, how does the Gonzales v. Raich case from 2005 relate to today?

At the end of last month, the Supreme Court denied the petition for a writ of certiorari in the case of Standing Akimbo v. United States, No. 19-1049 (10th Cir. 2020). This means that the decision of the Tenth Circuit will stand.

Here is the official summary of the case from Justia:

The IRS conducted a civil audit of Peter Hermes, Kevin Desilet, Samantha Murphy, and John Murphy (collectively, the “Taxpayers”) to verify their tax liabilities for their medical- marijuana dispensary, Standing Akimbo, LLC. The IRS was investigating whether the Taxpayers had taken improper deductions for business expenses arising from a “trade or business” that “consists of trafficking in controlled substances.” Claiming to fear criminal prosecution, the Taxpayers declined to provide the audit information to the IRS. This left the IRS to seek the information elsewhere—it issued four summonses for plant reports, gross-sales reports and license information to the Colorado Department of Revenue’s Marijuana Enforcement Division (the “Enforcement Division”), which is the state entity responsible for regulating licensed marijuana sales. In Colorado federal district court, the Taxpayers filed a petition to quash the summonses. The government moved to dismiss the petition and to enforce the summonses. The district court granted the motion to dismiss and ordered the summonses enforced. After review, the Tenth Circuit concluded the Taxpayers failed to overcome the IRS’ showing of good faith, and failed to establish that enforcing the summonses would constitute an abuse of process.

So once again we have a case regarding marijuana before the Supreme Court. And once again, it is Justice Clarence Thomas who questions the federal government’s prohibition of marijuana. In his statement for the Ccourt denying the petition for a writ of certiorari, he further explains the tax issue at the heart of the case:

At issue here is a provision of the Tax Code that allows most businesses to calculate their taxable income by subtracting from their gross revenue the cost of goods sold and other ordinary and necessary business expenses, such as rent and employee salaries. … But because of a public-policy provision in the Tax Code, companies that deal in controlled substances prohibited by federal law may subtract only the cost of goods sold, not the other ordinary and necessary business expenses. . . .… Under this rule, a business that is still in the red after it pays its workers and keeps the lights on might nonetheless owe substantial federal income tax.

Five times in the statement, Justice Thomas references the Raich case:

Sixteen years ago, this Court held that Congress’ power to regulate interstate commerce authorized it “to prohibit the local cultivation and use of marijuana” (citing Raich). Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Though federal law still flatly forbids the intra-state possession, cultivation, or distribution of marijuana, . . .… the Government, post-Raich, has sent mixed signals on its views. 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. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments’” then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens” (citing Raich).

Justice Thomas also pointed out the federal government’s contradictory approach to the legality of marijuana:

Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary. In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law. In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.” Given all these developments, one can certainly under-stand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana. . . . … One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Justice Thomas’ use of the words “necessary” and “proper” is a deliberate reference to the Necessary and Proper Clause of the Constitution (art. I, sec. 8, para. 18), which states that the Congress shall have the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The question at issue in the Raich decision was whether this clause included “the power to prohibit the local cultivation and use of marijuana in compliance with California law.”

So then, since 36 states have legalized the medical use of marijuana (with regulations), 27 states have decriminalized the possession of marijuana (in small amounts), 18 states have legalized the recreational marijuana legal in 18 states (with restrictions), and the District of Columbia has done all three things, what are the chances that the federal government will finally leave marijuana legislation up to the states? And eEspecially since marijuana is only fully illegal in only five states (Idaho, Kansas, South Carolina, Tennessee, Wyoming), and “a recent Quinnipiac University poll found that 69 percent of Americans, including 78 percent of Democrats and 62 percent of Republicans, support marijuana legalization.”

House Democrats have once again introduced the MORE ACT, the Marijuana Opportunity Reinvestment and Expungement Act of 2021 (H.R.3617) “to decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes.” Senate Majority Leader Chuck Schumer (D–N.Y.) supposedly plans to soon introduce similar legislation.

The similar MORE Act of 2019 (H.R.3884) actually passed the House on party lines at the end of 2019, but was never voted on in the Senate.

Like the previous bill, the new incarnation contains some provisions that Republicans will ostensibly find objectionable—like a 5 percent federal excise tax on cannabis products, rising to 8 percent after four years, that would be used in part to fund a “‘Community Reinvestment Grant Program’ aimed at subsidizing ‘services for individuals adversely impacted by the War on Drugs,’ including job training, reentry services, legal aid, literacy programs, youth recreation and mentoring programs, and health education” and pay for “substance use disorder services.” I suspect, however, that the real reason for GOP opposition is that Republicans are incorrigible drug warriors.

The days of marijuana prohibition—at least on the federal level—are numbered. The federal government’s war on marijuana (and all other drugs) is neither necessary in a free society nor proper under the Constitution.

This article appears originally at The Future of Freedom Foundation at this original link .

This post was written by: Laurence M. Vance

Laurence M. Vance is a columnist and policy advisor for the Future of Freedom Foundation, an associated scholar of the Ludwig von Mises Institute, and a columnist, blogger, and book reviewer at He is the author of Gun Control and the Second Amendment, The War on Drugs Is a War on Freedom, and War, Empire and the Military: Essays on the Follies of War and U.S. Foreign Policy. His newest books are Free Trade or Protectionism? and The Free Society. Visit his website: Send him e-mail.

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