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According to the Controlled Substance Act:

§ 801. Congressional findings and declarations: controlled substances....

...(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because -

(A) after manufacture, many controlled substances are transported in interstate commerce,

(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and

(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.

(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

(7) The United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances.

From what I understand, this means that because of the Commerce Clause of the Constitution, which grants Congress the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

...Controlled Substances may not be exchanged through interstate commerce. Also, because it is impossible to determine whether drugs produced for intrastate commerce are also crossing state lines, then:

(5)...it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

Therefore, no intrastate commerce is allowed. However, I don't understand how possession or manufacturing of drugs for personal consumption is covered in the Commerce Clause.

For example, let's say I wish to grow one cannabis plant for personal consumption. In what way does this affect the cannabis market in other states so that Congress has the power to prohibit it?

  • The texts you cite have been especially bolded by yourself, and they state quite directly why the substance's provenance or ultimate destination are irrelevant, if trade could or does exist in that substance between states, Congress has an interest as described, and thence the clause applies. What specifically of the explanations there isn't clear enough? The only answer you'll get otherwise is the above, more or less "read it again until you get it". – Nij Jan 11 '17 at 9:53
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    @Nij Does this mean if I wish to build a chair for personal use, then since trade of chairs exists between states, Congress has the authority to outlaw possession or manufacturing of chairs? – Joshua Jan 11 '17 at 10:34
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    @Joshua Yes, it means precisely that. No really, you joke, but the federal government could absolutely institute a Controlled Furniture Act. Scary, huh? – Patrick87 Jan 11 '17 at 19:46
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To pick up on your comment 'Does this mean if I wish to build a chair for personal use, then since trade of chairs exists between states, Congress has the authority to outlaw possession or manufacturing of chairs?': Yes.

For example, the US Congress can legislate to prohibit a farmer from growing wheat for use on his own farm, on the basis that there is interstate trade in wheat and therefore the Commerce Clause permits Congress to regulate the growing of wheat: Wickard v Filburn (1942) 317 US 111.

If you grow marijuana, or build a chair, or whatever, you conceivably affect the number of marijuanas, chairs, etc that are traded between states. Therefore you affect interstate commerce. Therefore the US Congress can regulate you. The fact that your marijuana or your chair or your what is trivial in the scheme of the national economy is irrelevant if the aggregation of all regulated marijuana, chairs or wheat is significant: 317 US 111, 127-128.

If the law didn't prohibit possession of marijuana absolutely but instead prohibited, say, the carrying of marijuana in schools, then the US Congress might have trouble relying on the Commerce Clause: see United States v Lopez (1995) 514 US 549 and replace 'marijuana' with 'handguns' (OK the marijuana/handgun analogy is bad but hopefully this illustrates that there are at least some limits on Congress' power -- it's not just 'any physical object that relates whatsoever to interstate trade therefore unfettered federal legislative power').

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    Indeed, federal power is definitely fettered. OK, at least a little fettered. Well, it is possible to fetter it in theory. OK, never mind, it's totally unfettered. Except the federal government has the power to fetter it because fettering is done across state lines and might potentially affect commerce. – Patrick87 Jan 11 '17 at 19:50
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The relevant case is Gonzales v. Raich, 545 U.S. 1 (2005).

Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.

The court relied heavily on Wickard, and distinguished the case from Lopez:

The similarities between this case and Wickard are striking. 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.

[...]

The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA’s findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim.

  • Thank you K-C. Do you know how the government defines "substantial effect"? Seems like if I grow one blade of wheat, they should define that as substantial. So if I can't plant a whole field for private consumption, that one blade should be a federal crime, right? – Joshua Jan 13 '17 at 17:42
  • @Joshua What federal statute does growing a blade of wheat violate? If I recall correctly, Wickard v Filburn was regarding a farmer who planted like 10 acres of wheat above his allotment, and was thus charged an overage penalty per bushel. This wasn't a crime, it was a civil penalty. Planting a single blade of wheat would not be a crime, nor even subject to the overage penalty that was in place in 1941. – K-C Jan 13 '17 at 17:52
  • Ah I see. So in 1941 there was a limit of how much wheat you could grow, and Filburn grew too much. The federal limit for Marijuana plants is zero. That makes sense, thank you. – Joshua Jan 13 '17 at 18:00
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Another relevant and recent case is Taylor v. United States, 579 U.S. ____, Case No. 14-6166 (June 20, 2016) (with only one justice dissenting). The official syllabus (citations to slip opinion omitted) states:

Petitioner Taylor was indicted under the Hobbs Act on two counts of affecting commerce or attempting to do so through robbery for his participation in two home invasions targeting marijuana dealers. In both cases, Taylor and other gang members broke into the homes, confronted the residents, demanded the location of drugs and money, found neither, and left relatively empty handed.

Taylor’s trial resulted in a hung jury. At his retrial, the Government urged the trial court to preclude Taylor from offering evidence that the drug dealers he targeted dealt only in locally-grown marijuana. The trial court excluded that evidence and Taylor was convicted on both counts. The Fourth Circuit affirmed, holding that, given the aggregate effect of drug dealing on interstate commerce, the Government needed only to prove that Taylor robbed or attempted to rob a drug dealer of drugs or drug proceeds to satisfy the commerce element.

Held:

  1. The prosecution in a Hobbs Act robbery case satisfies the Act’s commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds.

(a) The language of the Hobbs Act is unmistakably broad and reaches any obstruction, delay, or other effect on commerce, 18 U. S. C. §1951(a), “over which the United States has jurisdiction,” §1951(b)(3). See United States v. Culbert, 435 U. S. 371, 373.

(b) Under its commerce power, this Court has held, Congress may regulate, among other things, activities that have a substantial aggregate effect on interstate commerce, see Wickard v. Filburn, 317 U. S. 111, 125. This includes “purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce,” Gonzales v. Raich, 545 U. S. 1, 17, so long as those activities are economic in nature. See United States v. Morrison, 529 U. S. 598, 613. One such “class of activities” is the production, possession, and distribution of controlled substances. 545 U. S., at 22. Grafting the holding in Raich onto the Hobbs Act’s commerce element, it follows that a robber who affects even the intrastate sale of marijuana affects commerce over which the United States has jurisdiction.

(c) In arguing that Raich should be distinguished because the Controlled Substances Act lacks the Hobbs Act’s additional commerce element, Taylor confuses the standard of proof with the meaning of the element that must be proved. The meaning of the Hobbs Act’s commerce element is a question of law, which, Raich establishes, includes purely intrastate drug production and sale. Applying, without expanding, Raich’s interpretation of the scope of Congress’s Commerce Clause power, if the Government proves beyond a reasonable doubt that a robber targeted a marijuana dealer’s drugs or illegal proceeds, the Government has proved beyond a reasonable doubt that commerce over which the United States has jurisdiction was affected.

  1. Here, the Government met its burden by introducing evidence that Taylor’s gang intentionally targeted drug dealers to obtain drugs and drug proceeds. That evidence included information that the gang members targeted the victims because of their drug dealing activities, as well as explicit statements made during the course of the robberies that revealed their belief that drugs and money were present. Such proof is sufficient to meet the Hobbs Act’s commerce element.

754 F. 3d 217, affirmed.

  • Thank you ohwilleke. So basically any crime involving any sort of controlled substance is technically a federal crime. Is that what this means? – Joshua Jan 13 '17 at 17:46
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    Any crime involving any sort of controlled substance affects interstate commerce and is therefore within the jurisdiction of the federal government. Nothing forbids a state from also enacting crimes related to controlled substances and indeed, every state does so. – ohwilleke Jan 13 '17 at 19:11

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