The Corner

Supremes to Hear Pot Case

Among this morning’s cert grants is Ashcroft v. Raich, 2-1 a 9th Circuit decision holding that the prohibition of marijuana possession or distribution for purely medical (and non-commercial) purposes is beyond the scope of the Commerce Clause. Although I have problems with the Ninth Circuit’s opinion, at a fundmental level it is correct: the personal possession of a subsance is not “commerce among the several states” and should be beyond the scope of the the federal commerce power. Moreover, such possession is difficult to distinguish from simple gun possession in a school zone, which the Court held was beyond the scope of the commerce power in United States v. Lopez. Nonetheless, I fear this case may signal the end of the Court’s commerce clause jurisprudence.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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