Clarence Thomas blasts the ‘contradictory and unstable’ federal marijuana ban

By Damon Root | Reason

In 2005, the U.S. Supreme Court heard arguments in a case pitting California’s Compassionate Use Act, a voter initiative that legalized the use of medical marijuana within state borders, against the federal Controlled Substances Act, which outlawed the use of marijuana for any purpose anywhere in the nation. The question before SCOTUS in Gonzales v. Raich was whether the federal ban, which was based on the congressional power to “regulate commerce…among the several states,” may be lawfully applied against medical marijuana that is cultivated and consumed entirely within just one state.

The feds won 6–3. The Controlled Substances Act “is a valid exercise of federal power,” declared the majority opinion of Justice John Paul Stevens, who maintained that the Commerce Clause must be read capaciously so that Congress has the tools needed to reach such local activity as part of a “comprehensive” national regulatory scheme. Writing in dissent, Justice Clarence Thomas complained that “if Congress can regulate this under the Commerce Clause, then it can regulate anything—and the Federal Government is no longer one of limited and enumerated powers.”

Sixteen years later, Thomas is back with another blast at the federal government’s marijuana ban. What is more, Thomas now says that the federal government’s own actions may have negated Raich’s legal rationale. “Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” Thomas writes. “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”

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