Authored By: Kenneth Ford

California’s Bureau of Cannabis Control recently published proposed cannabis regulations have the potential for a Supreme Court case forthcoming.

The publication begins the 45-day public comment period. In an attempt to help the cannabis delivery business model, California is proposing an override on all local laws prohibiting cannabis in their city or counties to allow transport and delivery of cannabis to customers in those regions. The proposed regulation reads, “A delivery employee may deliver to any jurisdiction within the state of California.”1 This effort to unify the state and allow for a more efficient cannabis market is disregarding the sovereignty of cities and counties. Some city officials have already expressed their opposition to the new regulations, for instance Mayor Doug Hatley of Corning.2

Moreover, City Manager Kristina Miller stated, “Most jurisdictions do not like it when state or federal government puts things like this onto cities.”3 There may be a need for an impartial ear to listen and resolve this matter in the near future.

The Supreme Court seems like the best forum since the Court has original jurisdiction over cases where a state is a party.4 Since the potential controversy involves the federal question, the dormant commerce clause, the Supreme Court would have subject matter jurisdiction as well.

The Commerce Clause states that the United States Congress shall have power “to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.”5 The dormant commerce clause in particular is whether states and localities are prevented from passing their own laws on a given subject.6

In our scenario the subject is whether California can override cities and counties who have either prohibited cannabis or required local approval first. The commerce clause gives congress the authority to regulate the national economy. Thus, if the federal court finds that the proposed delivery regulation has a substantial effect on interstate commerce or the national cannabis market, then the Court may ultimately decide for California whether the regulation stands and/or is constitutional. Commerce power allows the federal government to reach out its arms and put its hands in places originally thought to be reserved to the states.

The federal government has the power to regulate “purely local activities” if it has a substantial effect on interstate commerce.7 In Gonzales v. Raich, the Supreme Court used the Commerce Clause authority to prohibit the local cultivation and use of marijuana in compliance with California law.8

If the Court stopped non-commercial cultivation and consumption in Gonzales v. Raich, then why wouldn’t the federal government step-in to handle California’s delivery regulation issue? Analogizing Gonzales v. Raich to Wickard v. Filburn,9 the Court said, “In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”10 At the time of this case, marijuana was not legal in the majority of the U.S. and so the need to preserve its national market was not as important as it is today. The supply and demand of cannabis is constantly being influenced by new state and country markets every year with legalization. The impact of a state-wide cannabis delivery market will not only have a substantial impact on the cost of cannabis in California, but also globally.

It’s clear that Congress has the power and the authority to help clear up some issues in the cannabis market. More and more there is becoming a strong need for the federal government to help sustain and stabilize the cannabis market. No better way to do so than with the Commerce Clause because state action cannot circumscribe Congress’ plenary Commerce power.11 Interstate commerce preempts certain state and local regulations and the new proposed regulation for cannabis delivery in California may be the right law for the federal government to show off its power.12

1https://www.cannalawblog.com/california-drops-proposed-permanent-cannabis-regulations/

2 http://www.thecannifornian.com/cannabis-news/northern-california/corning-opposes-state-cannabis-regulations/

3 Id.

4 U.S. Constitution Article III.

5 U.S Constitution Article I, Section 8, Clause 3.

6 https://fas.org/sgp/crs/misc/R43034.pdf

7 Perez v. United States, 402 U.S. 146, 151, 91 S.Ct. 1357, 28 L.Ed.2d 686.

8545 U.S. 1, 2, 125 S. Ct. 2195, 2196, 162 L. Ed. 2d 1 (2005).

9 317 U.S. 111 (1942).

10 545 U.S. 1, 2, 125 S. Ct. 2195, 2197, 162 L. Ed. 2d 1 (2005).

11 U.S.C.A. Const. Art. 1, § 8, cl. 3.

12 C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).