Americans for Prosperity Foundation Urges Supreme Court to Enforce Constitutional Limits on Federal Power to Regulate Local Conduct

Today, Americans for Prosperity Foundation filed an amicus brief in the U.S. Supreme Court in Canna Provisions Inc. et al. v. Bondi—an important constitutional challenge to Congress’s authority to regulate and criminalize purely local conduct that under our system of federalism is supposed to be handled at the state and local levels—urging the Court to address the important issues it presents. 

AFPF’s brief highlights what is at stake:  

This case is not about sound public policy or the wisdom of Massachusetts’ regulatory choices. The core question here is whether the federal government may trespass on and override exercises of States’ traditional police power to regulate purely local activity and decide for themselves how best to protect the health, safety, and welfare of their residents. Under our system of federalism, the answer is no. 

To protect liberty, the Framers of the U.S. Constitution wisely separated government power horizontally between the three branches of federal government it established and further divided government power between the federal government and the sovereign States. Under our system of federalism, the federal government only has limited, enumerated powers and does not have a general police power. By contrast, under the Constitution most government power is supposed to rest with the States, which did not surrender their general power of governing in that document, as the Tenth Amendment makes clear. Under this federalist system, most government decisions are supposed to be made at the state and local levels, reflecting the needs and priorities of their communities and allowing for state- and local-level innovation.  

But over time, beginning in the New Deal-era, the Supreme Court changed the original public meaning of the Constitution by expanding Congress’s enumerated powers  “to regulate Commerce” “among the several States”—that is, regulate interstate trade and transportation—and “make all Laws which shall be necessary and proper for carrying into Execution” that power to allow Congress to regulate purely local conduct having little or no actual connection with interstate commerce, including noneconomic conduct. And in Gonzales v. Raich went so far as to hold that Congress can criminalize the purely intrastate cultivation and personal use of cannabis, reasoning that Congress can regulate any intrastate conduct it has a “rational basis” to believe “substantially affects” interstate commerce in the aggregate. Raich is not only inconsistent with the Constitution’s original meaning but, at a practical level, grants the federal government far, far more power to regulate private local conduct than it should have.  

Canna Provisions’ cert petition ask the Court to decide whether to “overrule Raich’s holding that Congress can regulate purely local economic activity if there is any ‘rational basis’ that such activity substantially affects interstate commerce” and whether “Congress validly prohibited the purely local growing, distribution, and possession of state-regulated marijuana under the Commerce Clause and Necessary and Proper Clause[.]” These are weighty questions that warrant serious consideration. Indeed, as Justice Thomas flagged in a statement respecting cert denial in Standing Akimbo, even on its own terms, Raich’s holding may no longer be good law because of subsequent changes to the federal government’s approach to regulating cannabis. 

AFPF’s brief urges the Court grant Canna Provisions’ petition to restore the system of federalism our Constitution promises:  

The Petition presents an ideal (and rare) opportunity to begin to “temper” and “modify” this Court’s Commerce Clause and Necessary and Proper Clause jurisprudence to bring it closer in line with the Constitution’s original public meaning. This Court should take up that task. This Court should end Raich’s “rational basis” error by squarely overruling that aberration and making clear that the Constitution requires more before the federal government may intrude on the core police powers it reserves to the States. As Petitioners explain, the sky will not fall if this Court takes that modest step. On the contrary, our constitutional republic will be healthier for it. 

At a minimum, the government should be required to file a substantive response to the Petition. 

Michael Pepson is  the Regulatory Counsel at Americans for Prosperity Foundation.