“An Act Against the Constitution is Void”
~James Otis Jr. (1761)
It is high time the Supreme Court took another look at its abysmal ruling in the disturbingly incoherent 2005 case of Gonzalez v. Raich.
Today, we are going to discuss why Gonzales v. Raich was a Constitutional Wrong Turn—and why Canna Provisions v. Bondi Offers the Court a Chance to Find Its Way Back.
The Supreme Court’s 2005 decision in Gonzales v. Raich will forever hold a special place in the pantheon of federalism misadventures—a sort of constitutional Bermuda Triangle where textual limits vanish without warning. According to the majority, Congress’s power to “regulate Commerce… among the several States” magically includes the power to forbid the cultivation and use of medical marijuana that never crossed state lines, never entered a market, and never so much as made eye contact with interstate commerce (Gonzales v. Raich, 2005). To call this reading expansive is like calling the Pacific Ocean damp.
Those of you who have read my first book, Constitutional Sleight of Hand, will recognize Raich as the case that was so constitutionally irrational that it sparked the very interest in constitutional law that continues to drive my work to this day.
Fortunately, the Supreme Court has recently received a cert petition in a case known as Canna Provisions Inc. v. Bondi that seeks to expressly overturn the Court’s opinion in the Raich case.
But before we get to the pending case, what exactly was the Gonzalez v. Raich opinion, I hear you asking.
That is a very handsome question, so let’s briefly examine the facts, issues, and rules that are essential to understand Raich:
California law, under the Compassionate Use Act of 1996, allows the use of marijuana for medical purposes with a physician’s recommendation.
Respondents Raich and Monson are California residents who use marijuana for serious medical conditions under their physicians’ recommendations.
Monson cultivates her own marijuana, while Raich relies on caregivers to provide her with locally grown marijuana.
Federal DEA agents seized and destroyed Monson’s marijuana plants despite her compliance with California law.
Respondents argued that enforcing the federal Controlled Substances Act (CSA) against them violated the Commerce Clause, the Due Process Clause, the Ninth and Tenth Amendments, and the doctrine of medical necessity.
The Question Presented in the cert petition for Raich was:
Does Congress’s power under the Commerce Clause to regulate interstate markets for controlled substances include the authority to prohibit the local cultivation and use of marijuana for medical purposes in compliance with state law?
“The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
~Article I, § 8, Clause 3
The Supreme Court, rather than turning to an original understanding of the meaning of the text of the Constitution itself— Namely, the meaning and scope of the Commerce Clause, or basing their understanding on past Supreme Court precedent, or at least turning to an authoritative secondary source of information, such as Black’s Law Dictionary to define the term “commerce” given its definition is fundamentally a legal term of art, the Supreme Court somehow found it acceptable to turn to a modern, standard English dictionary, which gave the term commerce a legally unjustifiable definition that somehow included the “consumption” of goods as commerce. Even if those goods never crossed any state line and were never part of some commercial arrangement to sell, borrow, or transfer them.
It was almost impressive to see how creative the Court got in crafting its specious reasoning to uphold enforcement of the federal Controlled Substances Act (CSA), 21 U.S.C.S. § 801 et seq., and subsequently deny the declaratory and injunctive relief sought by the respondents (Angel Raich & Diane Monson) in accordance with California’s Compassionate Use Act, Cal. Health & Safety Code § 11362.5 (2005).
The Court concluded Angel Raich’s decision to grow and consume her own personal supply of medical marijuana, took away from the marijuana she would have otherwise “consumed” as part of the black market drug trade that has come into existence for no other reason than the federal government has chosen to regulate the possibility of personal marijuana consumption into legal non-existence. Because these hypothetical “black market” drug dealers, whose marijuana it was assumed must have crossed some state border at some undefined point, at some undefined time in the history of its transfer to the individual who ultimately made the choice to consume it— means that individually grown and consumed marijuana had an effect on the sale of illegal marijuana, meaning that the individual consuming their personally grown marijuana has engaged in interstate commerce, by explicitly NOT engaging in interstate commerce. Therefore their personally grown and consumed marijuana is subject to federal regulation.
Simple….
This is the most absurd expansion of “commerce” since landmark 1942 Commerce Clause case, Wickard v. Filburn.
This was also the first case that made it absolutely, crystal clear to me, the supposedly great sage of Constitutional Originalism, Justice Antonin Scalia, while talking a great game, exercised what I have frequently referred to as “half a loaf Originalism.”
What I am referring to is what I consider to be a “this far and no further” approach to originalist interpretation by Justice Scalia, in which he, in a pathetically defeatist manner, seemed to simply accept the proposition that the Constitution has been misinterpreted throughout its entire history to get to the very place we find ourselves now where the Supreme Court is all too eager to consider the unjustified encroachments of constitutional authority as somehow valid simply because the very, very flawed understanding of Stare Decisis that the court has adopted in all things, and there is nothing to be done in fixing those past errors, despite the fact he recognized that no Originalist could possibly justify the federal government’s current size and scope as squaring with constitutional limitations. Even when, as in this case, it also strays well into realms of power explicitly granted to the several States. Such as the grant of “police powers” to the several States, according to the text of the Tenth Amendment.
Justice Clarence Thomas—who in 2005 was the lone member of that Court still in possession of his original sense of constitutional geography—saw the problem immediately. His Raich dissent reads like a guide for anyone still trying to find the Commerce Clause on a map drawn by the Framers rather than one sketched by a Court drunk on rational-basis deference. Thomas wrote, with diplomat-level restraint, that:
“[I]f Congress can regulate this [intrastate marijuana], then it can regulate virtually anything.”
~Gonzales v. Raich, 2005, Thomas, J., dissenting
In other words, if growing a medicinal plant for personal use at home is interstate commerce, then baking cookies for your grandmother is basically engaging in the global sugar trade.
The constitutional misadventures of Raich are even more galling when viewed through the lens of post-Wickard v. Filburn history. For decades, Wickard (1942) had set a precedent so expansive that virtually any local activity could be shoehorned into Congress’s Commerce Clause authority. Enter United States v. Lopez (1995) and United States v. Morrison (2000), the first major attempts since Wickard to push back against the federal government’s audacious self-conception of it’s Commerce Clause powers.
In Lopez, the Court held that possessing a gun near a school is not an economic activity substantially affecting interstate commerce (United States v. Lopez, 1995). In Morrison, it held that gender-motivated violence is similarly beyond Congress’s reach (United States v. Morrison, 2000).
These cases inspired a judicial philosophy known as New Federalism, which sought to reclaim State sovereignty from the voracious expansion of federal power. New federalism rested on the idea that states are not mere administrative subdivisions of the federal government, but sovereign political entities with their own reserved powers under the Tenth Amendment (Hamburger, 2024; Somin, 2006).
Gonzales v. Raich, however, is generally viewed as an explicit repudiation of this ideal. By holding that Congress could regulate homegrown medical marijuana because it might, in some hypothetical chain of economic events, affect interstate commerce, the Court effectively told states, “Sovereignty? Cute idea. We prefer control.” The brief glimmer of hope offered by Lopez and Morrison was extinguished in a puff of rational-basis smoke.
Fast forward nearly two decades, and Canna Provisions Inc. v. Bondi has arrived at the Supreme Court’s certiorari doorstep, politely requesting that the Court rectify the mess it made.
The questions presented in Canna Provision’s cert petition are:
Petitioners brought this case to challenge the validity of the Court’s ruling in Gonzales v. Raich, 545 U.S. 1 (2005), that Congress may prohibit the purely local production, distribution, and possession of marijuana that is authorized by state law. A narrow majority held that the Court “need not determine whether’ those ‘activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding,” id. at 22, and that Congress could rationally conclude that those activities would frustrate its goal of eliminating interstate marijuana. Multiple developments have undermined Raich’s rationale and outcome. Following Raich, the Court has applied a more rigorous standard to Congress’s regulation of traditionally local concerns. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 560 (2012) (opinion of Roberts, C.J.) (holding that the individual mandate was not incidental to interstate regulation). Technological advances have made state-regulated marijuana distinguishable from interstate marijuana, and Congress and the Executive Branch have embraced that distinction with legislation and policies against prosecuting state-regulated marijuana activities. Dozens more states— 38 total—have enacted marijuana programs, and interstate commerce in marijuana has dropped.
Question 1: Should the Court overrule Raich’s holding that Congress can regulate purely local economic activity if there is any “rational basis” that ii such activity substantially affects interstate commerce?
Question 2: Has Congress validly prohibited the purely local growing, distribution, and possession of state-regulated marijuana under the Commerce Clause and Necessary and Proper Clause?
The petition is a kind of constitutional Lost and Found notice—“Dear Court, you seem to have misplaced the idea of enumerated powers. We believe it slipped out of your pocket sometime around June 2005.”
What’s more, the first question presented challenges the majority opinion in the Raich case, drafted by Justice Stevens and joined by Justices Kennedy, Souter, Ginsburg, and Breyer. This was the opinion that sought to argue that, in defining “commerce,” we should not turn to an original understanding of the meaning and scope of the Commerce Clause, which provides the foundational understanding of the legal meaning of the term “commerce.”
This, despite the fact that there was ample evidence of the original understanding of the meaning and scope of the Commerce Clause to be found in the records of the Philadelphia Convention of 1787 (at which the Constitution was drafted by our Framers) as well as the various state ratifying conventions (at which the people of the several States gave legal force to the Constitution.)
Recommended Reading: For anyone wishing to gain a thorough understanding of the Commerce Clause, Randy Barnett’s The Original Meaning of the Commerce Clause is an essential read.
Nor should we turn to Supreme Court precedent that sought to define the meaning and scope of the term “commerce” that can be identified in foundational cases, such as Gibbons v. Ogden (1824).
In fact, the majority opinion of Justice Stevens failed to use what lawyers and legal scholars refer to as authoritative secondary sources, which means everything that explains, interprets, critiques, or contextualizes the law rather than creating it. This includes legal dictionaries, encyclopedias, treatises, law review articles, annotations, and so forth. essentially any source that can help define a word or concept as a legal term of art.
Instead, the majority opinion based its expansive view of the Commerce Clause on a modern, standard English dictionary definition of “commerce,” which introduced a new conception to American jurisprudence: that the term “commerce” can be applied to the act of consumption.
Whereas the second question presented explicitly asks the Court to overturn Justice Scalia’s lone concurrence in the Raich case. While Scalia rejects and rightly mocks the majority opinion for turning to a common English dictionary to define commerce, Scalia wholly supported the primary holding that Raich & Monson had engaged in a federally regulated activity, using (if you can believe this) an even more convoluted argument than the majority’s redefinition of commerce, as a means to finding their rationale of the hypothetical “black market” marijuana argument.
While Justice Scalia at least recognized Raich & Monson didn’t engage in constitutionally regulable “commerce” under the Commerce Clause, he instead rested his argument on an expansive reading of N.L.R.B v. Jones & Laughlin Steel Corp (1937) and United States v. Darby (1941) which gave us a new legal doctrine known as the “Substantial-Effects Test,” as well as a Wickard v. Filburn doctrine called the “Aggregation Principle”.
[The Congress shall have 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.
~Article I, Section 8, Clause 18
This meant that Justice Scalia’s argument was, in fact, based on the Necessary & Proper Clause, although he never clearly states that at any point in his concurrence. According to Scalia:
“Congress could regulate some local non-economic activity as part of a larger regulation of interstate commerce, whether or not the local activity had a substantial effect on interstate commerce.”
~Gonzalez v. Raich, 545 U.S. 1, 61 (Scalia, A., concurring).
Furthermore, as I discussed in my book, Constitutional Sleight of Hand:
“Crucially, Scalia thought the Court must defer to Congress’s Judgement. The Legislature, and not the Judiciary, should decide whether the regulation of local non-economic conduct, in this case the cultivation of local marijuana that was never bought nor sold, was essential to the Controlled Substances Act’s broader regulatory scheme” (Fiedler, 2022).
In other words, the Court should abdicate its fundamental responsibility of interpreting what the law means and whether it falls within the meaning and scope of a particular federally enumerated power. It’s up to Congress to police itself and define the scope of its Constitutional authority.
Indeed, scholars have been pointing out the flaws in both interpretations ever since. Ilya Somin argues that Raich is “one of the Supreme Court’s worst-ever federalism decisions,” an accomplishment not easily achieved given the competition (Somin, 2006/2024). He notes that the federal government once needed a constitutional amendment—the Eighteenth—to prohibit the purely intrastate production of alcohol. If lawmakers of the Prohibition era didn’t think they could reach the homebrew hobbyist under the Commerce Clause, one suspects they understood something the Raich majority later forgot: in-state activity is not interstate commerce merely because Congress wishes it were.
And then there’s the present federal regime, which resembles national prohibition about as much as a colander resembles a submarine. As Justice Thomas observed in 2021:
Today’s marijuana laws amount to a patchwork quilt made by a committee that ran out of thread halfway through (Standing Akimbo v. United States, 2021, Thomas, J., statement).
States permit and regulate cannabis markets openly—sometimes exuberantly—while federal law remains on the books but sporadically enforced, like a neighborhood watch sign nobody has read since 1978. The result is a Wonderland of contradictions: businesses allowed to operate by state law are simultaneously forbidden by federal law from hiring security guards to prevent being robbed. One can be both “law-abiding” and a federal felon on the same day, sometimes simultaneously.
Philip Hamburger adds another dimension: the rational-basis test adopted in Raich is so deferential that it politely excuses judges from determining whether Congress actually has the constitutional authority it claims (Hamburger, 2024). Instead, judges need only ask whether Congress might have had a reason—or at least a rational-sounding bedtime story—for believing so.
This approach essentially comes across as Chevron deference’s rebellious cousin: where Chevron asked courts to defer to agencies, Raich directs them to defer to Congress itself on the scope of Congress’s own powers. A concept which is, and always shall be, entirely anathema to the very notion of a federal republic, which our framers were quite careful and deliberate in crafting.
To put it in everyday terms, it’s like letting a teenager decide the appropriate curfew based solely on whether the teenager believes the curfew is reasonable.
To put it in equally understandable, yet more rhetorically stark terms, much the same way the Court’s overruling of Chevron v. N.R.D.C. (1986) was nothing short of an originalist/textualist wet dream, Canna Provisions Inc. v. Bondi is well on its way to be the most significant sheet-soiling, pajama-ruining originalist decision since the Loper Bright Enterprises v. Raimondo (2024) decision that overturned Chevron. Assuming, of course, the Supreme Court grants the petition for cert.
But, as I have discussed in the past, the Court is not comprised of the 6-3 conservative/liberal split most people assume. It constitutes a 3-3-3 split of principled originalists (Clarence Thomas, Neil Gorsuch & Samuel Alito), 3 moderate, if inconsistent, conservatives (Chief Justice John Roberts, Bret Kavanaugh & Amy Coney Barrett), and the liberals (Sonia Sotomayor, Elana Kagan & Ketanji Brown Jackson). There is no way to say with certainty that they have the four votes needed to grant cert on the merits, much less the five votes needed to overturn Raich.
Still, I’m cautiously optimistic that a coalition on the Court might be willing to overturn Raich—one perhaps anchored by Thomas, Gorsuch, Alito, Barrett, and Jackson. It certainly helps that none of the current Justices, save Thomas, participated in the original decision. And Thomas, of course, was Raich’s fiercest critic. Judges tend to be highly reluctant to overturn cases they had a hand in deciding.
There’s another glimmer of hope as well. The Chief’s carefully calibrated majority opinions in Loper Bright Enterprises v. Raimondo and S.E.C. v. Jarkesy (2024) signaled a clear and deliberate break from the Court’s long habit of yielding to the ever-growing powers Congress and federal regulators assert for themselves. That shift gives me some reason to think a solid six- or even seven-Justice bloc might be willing to repudiate Raich outright.
The logic for overturning Raich is not just found in the lack of an enumerated power Congress could point to, in justifying the passage of the Controlled Substances Act of 1970. It is equally derived from the Tenth Amendment—often treated as constitutional wallpaper, appreciated only by those who enjoy the decorative arts. But as Professor Hamburger notes, it is more than a tautology; it is a recognition that Americans retain both structural and textual rights against federal overreach (Hamburger, 2024).
When the Court adopts a standard allowing Congress to regulate matters “not in fact” within its enumerated powers, it violates not only the Commerce Clause but the Tenth Amendment right to be left alone by a federal government that has wandered beyond its jurisdiction like a particularly determined mall cop (U.S. Legal, 2025).
This brings us back to Canna Provisions, which asks the Supreme Court to revisit Raich and—dare we dream—correct it. The cert petition is shepherded by an all-star team (Boies et al., 2024) and supported by briefs from across the ideological spectrum. Libertarians, conservatives, and a growing number of progressives have discovered that federalism, once treated as an eccentric uncle with too many opinions, has become indispensable in an era where federal power swings dramatically with each new administration (Somin, 2019). Limits matter, particularly when the federal government’s oscillations risk sweeping away entire state policy landscapes.
Fixing Raich would not solve every structural problem in the federal system, nor would it resolve debates over drug policy. As Professor Hamburger candidly notes, skepticism about drug legalization need not imply enthusiasm for a federal government whose powers have become so elastic they could double as bungee cords. The issue is older and more fundamental: we cannot afford a constitutional framework in which Congress has nearly unlimited authority, and courts have nearly unlimited reluctance to say so.
The Court corrected Chevron Deference last term in Loper Bright v. Raimondo (2024), reasserting that judges—not agencies—must interpret the law. Canna Provisions offers the Court a parallel opportunity: to reassert that judges—not Congress—must determine the limits of Congress’s powers. This is not judicial imperialism. It is a judicial responsibility.
And so the stage is set. If the Court grants certiorari, Canna Provisions may finally give Justice Thomas the moment he has earned: the day the Court overrules Raich, and the constitutional sky grows a shade clearer.
However, just when one might think the Court could be persuaded by originalist reasoning, there’s a cautionary tale in FDA v. Wages (2021). In that decision, the Court banned flavored nicotine vapes while allowing the nicotine itself to remain on the market—a regulatory choice that can only charitably be described as “subtle.” Here, the Court displayed a mastery of bureaucratic pettifoggery, punishing the candy coating while leaving the substance at issue intact. The precedent demonstrates that the justices are often more comfortable with partial, symbolic interventions than with directly confronting the constitutional question. One can almost hear them muttering, “Why correct decades of misinterpretation when we can fiddle with flavors instead?”
While FDA v. Wages does not lend itself to a one-to-one comparison with Canna Provisions Inc. v. Bondi, the precedent in Wages suggests that the Court may be reluctant to overturn Raich. Particularly when partial regulatory solutions allow the Court to sidestep confronting the scope of Congress’s power.
The Court—much like the ancient pantheons of pagan gods—is fickle, its will often beyond the comprehension of mortal men.
The stakes in Canna Provisions remain high. If the Court grants cert, there is a great potential to cast light on perhaps the most abused power in all of constitutional law. If the Court fails to grant cert, Raich will continue lumbering along—an undead precedent, gnawing steadily at the idea of limited federal power. One hopes the justices prefer sunlight to zombies.
Either way, one thing is undeniable: Raich was wrong, and the only question is whether the Supreme Court has the courage—or attention span—to admit it.
~Cartago Delenda Est
References
21 U.S. Code § 801 - Congressional findings and declarations: controlled substances. (2025). https://www.law.cornell.edu/uscode/text/21/801
Barnett, R. (2001). The Original Meaning of the Commerce Clause. The University of Chicago Law Review, 68(1), 101. https://doi.org/10.2307/1600443.
Boies, D., et al. (2024). Petition for certiorari, Canna Provisions Inc. v. Bondi. https://www.supremecourt.gov/DocketPDF/25/25-518/380647/20251024180126966_25-%20Petition.pdf
CA Health & Safety Code § 11362.5. (2024). Justia Law. https://law.justia.com/codes/california/code-hsc/division-10/chapter-6/article-2/section-11362-5/
Canna Provisions v. Bondi Docket. (2025). Supremecourt.gov. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/25-518.html
Congress.Gov. (2024). The Necessary and Proper Clause: Overview | Constitution Annotated | Congress.gov | Library of Congress. Constitution.congress.gov. https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/
FDA v. Wages, 593 U.S. ___ (2021).
Gibbons v. Ogden, 22 U.S. 1 (1824).
Gonzales v. Raich, 545 U.S. 1 (2005).
Hamburger, P. (2024). Commentary on Canna Provisions v. Bondi and the rational-basis test.
Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024).
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
Somin, I. (2006). Federalism and the limits of the Commerce Clause: A response to Raich. Cornell Law School Symposium.
Somin, I. (2019). Federalism in the age of executive overreach.
Standing Akimbo, LLC v. United States, 594 U.S. ___ (2021) (Thomas, J., statement).
United States v. Darby, 312 U.S. 100 (1941).
United States v. Lopez, 514 U.S. 549 (1995).
United States v. Morrison, 529 U.S. 598 (2000).
U.S. Legal (2025). Rule of Construction Law and Legal Definition | USLegal, Inc. Uslegal.com. https://definitions.uslegal.com/r/rule-of-construction.
Wickard v. Filburn, 317 U.S. 111 (1942).
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