The U.S. Supreme Court will announce on December 15 whether it will hear a major challenge to federal marijuana bans brought by state-licensed cannabis companies, a decision that could force a reckoning between national law and the patchwork of state-legal markets.
The justices are slated to discuss the petition in Canna Provisions Inc. v. Garland during a private conference on December 12. Four votes are needed to grant review, which would make it the first time the Court directly weighs the constitutionality of federal prohibition amid widespread state legalization.
Massachusetts-based plaintiffs Canna Provisions, Gyasi Sellers, Wiseacre Farm, and Verano Holdings argue in their October petition that the Controlled Substances Act’s (CSA) Schedule I classification for marijuana violates the Commerce Clause by criminalizing purely intrastate activity compliant with state regulations. They seek to overturn the 2005 Gonzales v. Raich ruling, which upheld federal authority over homegrown cannabis in California.
The case stems from a federal lawsuit dismissed by a lower court and rejected by the 1st U.S. Circuit Court of Appeals in May. The plaintiffs, represented by Boies Schiller Flexner LLP, contend Congress has effectively abandoned enforcement against state programs, creating untenable conflicts for businesses operating legally under local laws.
The Justice Department waived its right to respond on Monday, with Solicitor General D. John Sauer stating, “The Government hereby waives its right to file a response to the petition in this case, unless requested to do so by the Court.”
A response was due November 28.
Support for the petition has grown from limited-government advocates. The Americans for Prosperity Foundation, founded by Charles Koch, filed an amicus brief Wednesday urging the Court to take the case and overrule Raich.
“The general power of governing rests with the States — not the federal government — and that most decisions should be made at the state and local levels, reflecting the needs and priorities of their communities,” the group wrote, per Marijuana Moment.
It called the CSA “an affront to our system of federalism” when applied to in-state operations with “no empirically demonstrable link to interstate commerce.”
The brief labeled Raich “a constitutional aberration” and pressed justices to “sweep Raich into the dustbin,” arguing the case offers a chance to align Commerce Clause precedent with the Constitution’s original meaning.
“The sky will not fall if this Court takes that modest step. On the contrary, our constitutional republic will be healthier for it.”
The Cato Institute and Pacific Legal Foundation have also signaled plans to submit friend-of-the-court briefs in favor.
Lead attorney Josh Schiller expressed cautious optimism to Marijuana Moment, saying he’s “hopeful” — albeit somewhat “nervous” — about the outcome. “Time is of the essence,” he added. “We think that this is the right time for this case because of the need — the industry needs to get relief from federal oversight at the moment.”
A favorable ruling could dismantle decades of prohibition, but denial would preserve the status quo, potentially with relisting for future review. Justice Clarence Thomas hinted at openness to revisiting Raich in a 2021 statement, noting that post-Raich policies have “greatly undermined its reasoning” through lax enforcement and congressional protections for medical programs.
“Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning,” Thomas wrote, decrying a “half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana” that “strains basic principles of federalism and conceals traps for the unwary.”