Is the Controlled Substances Act constitutional?

Jonathan Adler, an associate professor at the Case Western University School of Law, questions the constitutionality of the Controlled Substances Act (CSA), in this column at NRO. The primary issue involved is federalism.

In the case before the Supreme Court, Ashcroft v. Raich, a medicinal marijuana user is challenging enforcement of the CSA, which would preempt a California law permitting a patient to use marijuana if prescribed by a doctor.

Adler argues that a high court ruling upholding the CSA would be a massive blow to our nation's balance of federalism:

Like most federal regulatory statutes, the CSA was enacted pursuant to Congress’s power to “regulate commerce...among the several states.” As currently understood, this clause grants Congress the broad power to regulate commercial enterprises and other activities that have a “substantial effect” on interstate commerce. There is little question that this entails the power to regulate the production, distribution, and sale of pharmaceuticals, particularly insofar as medical markets are of national scope. . . .

In this case, the federal government also maintains that it can prohibit the simple possession of a drug for medical purposes, even when authorized and regulated by a validly adopted state law, and even if conducted in a wholly noncommercial fashion. Such power, the federal government asserts, is necessary to maintain a comprehensive federal regulatory system for the use and distribution of drugs. Moreover, even the mere possession of drugs can “substantially affect” interstate commerce, as there is a vibrant, albeit illegal, interstate drug market.

This argument proves too much. Under the government’s reasoning there is no activity beyond Congress’s grasp -- a position the Supreme Court has repeatedly rejected over the past ten years. Essentially, the Justice Department maintains that the power to adopt broad economic regulatory schemes necessarily entails the power to reach the most inconsequential, noncommercial conduct that occurs wholly within the confines of a single state. Even at the height of federal power during the New Deal, the Supreme Court never authorized an assertion of federal power as expansive as is at issue here. Should the Court uphold the assertion of federal power in this case, constitutional limitations on the exertion of enumerated federal powers could well disappear.