What if we told you the United States Supreme Court would legalize medical marijuana? That the unlikely hero of the story was Clarence Thomas? And that he would work with the most liberal justices to make it happen. Sometimes you don’t know how high you can get until you really try. On the next 30 for 30: Highly Legal.
Hear us out, and no, we haven’t been using the product as we write this.
If you’ve been paying attention, you know that the current Congress is unlikely to legalize marijuana. Sure, late last year President Biden announced what he described as steps to “end” the federal government’s “failed approach” to marijuana.
Specifically, he (1) issued mass pardons for federal convictions of simple marijuana possession and encouraged governors to do the same for state-level marijuana offenses, and (2) ordered Secretary of Health and Human Services Xavier Becerra “to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.” We’ve expressed skepticism that the pre-election announcement was more of a political than substantive move by the president and is unlikely to yield an immediate change to the federal legal status of marijuana.
And while we’ve expressed some optimism that the House of Representatives may pass a comprehensive legalization bill, any such legislation seems dead on arrival in the closely divided and more conservative Senate.
Enter the High Court.
Supreme Court Previously Upheld the Prohibition on Marijuana
Nearly 20 years ago, that very issue came before the U.S. Supreme Court. In Gonzales v. Raich, 545 U. S. 1, 5 (2005), the Court held that Congress’ power to regulate interstate commerce authorized it “to prohibit the local cultivation and use of marijuana.”
In legal jargon, the Court rationalized that Congress had “enacted comprehensive legislation to regulate the interstate market in a fungible commodity” and that “exemption[s]” for local use could undermine this “comprehensive” regime. The Court stressed that Congress had decided “to prohibit entirely the possession or use of [marijuana]” and had “designate[d] marijuana as contraband for any purpose.” Prohibiting any intrastate use was thus, according to the Court, “‘necessary and proper’” to avoid a “gaping hole” in Congress’s “closed regulatory system.”
Read the rest of this opinion at the National Law Review