RE:RE:RE:Boies case update:“
Given all these developments, according to Justice Thomas, “one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.” The reasoning of the Raich decision – regardless of whether it held water at the time – is obviously no longer valid. The Court’s central holding and rationale in that case should be overruled. Now, are there other valid reasons to support the right of the government to prohibit intrastate marijuana activity? That’s up to the government to prove.
To reform advocates, I would caution against overreacting to the First Circuit’s ultimate decision in this case. It may be a tall order for a federal appellate court to overrule a Supreme Court opinion that is directly on point. And regardless of the First Circuit’s decision, this case seems tailor made for the Supreme Court.
What happens at the Supreme Court is always difficult to predict. We took a stab at this very question last year, arguing that either a majority of the Court would overrule Raich on Commerce Clause grounds or, perhaps in a surprising mix of bedfellows, would cobble together five votes using a mixture of conservative justices on Commerce Clause grounds and certain liberal justices on the grounds that marijuana is a fundamental right.
We’ll report back on the First Circuit decision once we have it. And stay tuned for a post on whether, and if so, how, rescheduling marijuana would impact this analysis.”