A solitary conservative jurist persists in pressing a legal crusade centered on the Commerce Clause.
The Constitution entrusts Congress with authority to regulate commerce “among the several States.” In 2005, the Supreme Court embraced a broad reading of the Interstate Commerce Clause, permitting the federal prohibition on marijuana to reach medical users whose activity was legal under state law and whose cultivation and use occurred entirely within a single state.
The ruling in Gonzales v. Raich ended 6–3, with Justice Clarence Thomas delivering the most pointed dissent. He warned that if Congress could regulate this, then it could regulate anything—and the Federal Government would no longer be one of limited and enumerated powers.
Thomas does not uniformly champion strict limits on federal power. Earlier in the term, for example, he backed President Donald Trump’s unilateral tariff plan and endorsed a broad vision of executive power that could free the president from standard constitutional constraints in matters involving foreign affairs.
Nevertheless, when marijuana intersects with the Commerce Clause, Thomas argues for curbing federal power. This stance resurfaced last week in the Court’s nearly unanimous decision in United States v Hemani, which held that prosecuting a marijuana user for possessing a firearm violated the Second Amendment right to keep and bear arms. “We do not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others,” wrote Justice Neil Gorsuch for the majority. But the government “asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing,” and the Court under his leadership was unwilling to accept that.
“I join [the Court’s] opinion in full,” Thomas wrote in concurrence. But then, as he sometimes does, he proceeded to author a separate opinion that advanced an even more aggressive legal theory than his colleagues were apparently willing to sign onto.
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That theory was this: “As a matter of both original meaning and this Court’s precedents,” Thomas wrote in Hemani, “Congress lacks the power to regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past.” In other words, according to Thomas, the federal law that makes it illegal for “unlawful users” of drugs to possess firearms is unconstitutional on its face because Congress has no legitimate authority to criminalize a drug user’s “intrastate gun possession.”
This is basically the same reading of the Interstate Commerce Clause that Thomas championed way back in Raich. “As an original matter,” he wrote last week in Hemani, quoting from his Raich dissent, “the Commerce Clause authorizes Congress only ‘to regulate the buying and selling of goods and services trafficked across state lines.'” And because the federal law at issue in Hemani “criminalizes possession of firearms apart from any purchase or sale of goods and services across state lines,” he continued, “I doubt that it could be an exercise of Congress’s Commerce Clause powers as an original matter.”
I have long thought that Thomas had the better argument in Raich and that Justice John Paul Stevens’ majority opinion deserved to be overruled. The fact that Thomas is still basically waging the same lonely crusade two decades later, however, does not lead me to expect that result anytime soon.
