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Federalism, Marijuana, and the Commerce Clause

Smokin Moose

Fallen Cannabis Warrior
Ashcroft v. Raich may redefine the boundaries of the federal government's definition of "interstate commerce." Drug Enforcement Agency agents confiscated and destroyed cannabis plants in the California home of Diane Monson in 2002 under the guidelines of the Federal Controlled Substances Act. But, under the California Compassionate Use Act of 1996 - a state law - Monson was allowed to have the plants for medical use. Does the Federal Government have the right to ban medical marijuana use and acts associated with the growing of marijuana for medical purposes under the Commerce Clause of the United States Constitution?

"Medical-marijuana case crucial" Seattle Times. November 29.
The Seattle Times: Health: Medical-marijuana case crucial

"Court hears medical marijuana case" Chicago Tribune. November 30.
(reg. required)

"Excerpts of medical marijuana arguments" Seattle Post Intelligencer. November 30.
Seattle Post-Intelligencer: AP - Washington, D.C.

"The California Compassionate Use Act of 1996"
CCUA: Implementation and Compliance

"The Federal Controlled Substances Act"

"The United States Constitution"
(Article 1, Section 8, Clause 3 — the "Commerce Clause")


1. The federal government argues that it is allowed to control the medical use of marijuana because such use falls within the realm of interstate commerce. How could the Commerce Clause of the Constitution apply to medical marijuana?
* Possessing, manufacturing, or distributing a "valuable commodity" to a "ready market" has previously been defined as interstate commerce which can be regulated by Congress under the Commerce Clause of the Constitution.
* Precedents have given power under the Commerce Clause based upon "the impact on the economy of an entire category of activity, taken as a whole."
* The government believes that the users of medical marijuana - buying it on the street or growing it - will have an impact on the local, state, and the national economy.
* It is plausible that 100,000 out of 34 million Californians qualify for medicinal use of marijuana. 100,000 users will have an effect on the national economy
2. Why do Diane Monson and Angel Raich believe that the Commerce Clause does not apply to medical marijuana?

The marijuana plants were intended for each woman's use only. Because they were only growing for themselves, the marijuana could not have an effect on interstate commerce. Even if there was an effect, "relatively few people would meet the medical criteria for legal marijuana use, and any impact on the overall market for marijuana would therefore be trivial."

3. Why did the county police NOT confiscate the six marijuana plants of Diane Monson's? Why DID the federal agents of the Drug Enforcement Agency confiscate the plants?

According to the California Compassionate Use Act of 1996, it is legal for California residents to grow and use marijuana for medicinal purposes with a doctor's prescription. The county police officers were acting under the authority of this law, so they were not allowed to confiscate the plants. On the other hand, the DEA agents are under the authority of the Federal Controlled Substances Act which authorizes them to destroy the plants because they are considered illegal drugs.

4. When state laws are in conflict with federal laws, which takes precedence? Why?

Answers will vary. Some students will contend that state laws take precedence based on the Tenth Amendment. Other students will argue that federal laws always take precedence unless ruled unconstitutional by the Supreme Court or if state laws are violating Constitutional rights. A further discussion of the Tenth Amendment might be appropriate to further explore these ideas.

5. Create a situation unrelated to medicinal drug use in which a clash between states' rights and federal power might occur.

Answers will vary but may focus on issues that are currently being debated such as: abortion, gay marriage, eminent domain as well as historical issues such as segregation and taxation policy.


1. Have students read three of the Founders' opinions on the role of the federal government in regulating commerce.

"The Founders' Constitution" Article 1, Section 8, Clause 3: "Commerce Clause"
Article 1, Section 8, Clause 3 (Commerce)

After they've read the excerpt, have them discuss — based upon their research — how and why the Founder's would have decided this case.
2. Have students research the following Supreme Court cases that directly involve the Commerce Clause or medical marijuana. Discuss the importance of each case in class.

United States v. Oakland Cannabis Buyers' Cooperative (2001) UNITED STATES V. OAKLAND CANNABISBUYERS' COOPERATIVE

Wickard v. Filburn (2004)

United States v. Lopez (1995)
United States v. Lopez, 514 U.S. 549 (1995).

Gibbons v. Ogden (1820)
Article 1, Section 8, Clause 3 (Commerce): Gibbons v. Ogden

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