This week the 8th U.S. Circuit Court of Appeals heard arguments in a case that retests the federal role in marijuana regulation through the Commerce Clause of the Constitution. In the 2005 Gonzales v. Raich decision, the Supreme Court ruled that the federal government's interest in controlling marijuana grown legally under state law for personal medical use was legitimate, because the product of such legal activity could enter into illegal interstate commerce even if that was demonstrably not the intention of medical patients and their caretakers.
In round two in the saga of marijuana and the Commerce Clause, Monson v. DEA, farmers in North Dakota seek to prove that the federal government has no legitimate interest in regulating hemp grown legally under their state law, because the only product with the potential to enter interstate commerce in this case is a legal commodity. Hemp products, derived from the non-drug variety of marijuana, are not regulated under the Controlled Substances Act. The living plant and viable seed are regulated, though, so farming hemp on U.S. soil for an industry worth tens of millions of dollars in North America is not permitted by the DEA. Under North Dakota law, the living (thus regulated) hemp plant would not leave the farmers' fields, much less the state.
This time around, proponents argue:
Certainly, Congress could choose to regulate interstate commerce in hemp stalk, fiber, non-viable seed and oil. However, Congress has expressly chosen not to regulate interstate commerce in those goods. As a result, any discussion of whether Congress could also choose to regulate intrastate commerce in those same commodities is precluded by the fact that Congress has explicitly chosen not to regulate even interstate commerce in those goods. It stands to reason that Congress, having chosen not to regulate interstate commerce in a class of products, cannot constitutionally regulate intrastate state-regulated licensed activity that results only in putting that same class of products into commerce. In this case, this state-regulated activity presents no possibility of drug marijuana flowers being diverted–the congressional interest under the CSA. [...]
As explained by the farmers in their Complaint, there is simply no rational, factual basis to conclude intrastate industrial hemp production impacts the interstate drug marijuana market. Therein lies the critical distinction between this situation and that in the California medical marijuana case, Gonzales v. Raich, 545 U.S. 1 (2005), on which the District Court principally relied.