BOSTON (CN) — One of the country’s most famous lawyers told a First Circuit panel Thursday that the federal law banning marijuana is unconstitutional, but the judges seemed to dismiss the argument as little more than a pipe dream.
David Boies, the attorney who represented Al Gore in the 2000 election dispute, argued Congress’ more liberal approach to pot in recent years has undermined the constitutional basis for a 1970 law that banned it at the federal level.
Back in 2005, the Supreme Court held the federal law was valid under the interstate commerce clause even as applied to homegrown weed, because allowing purely in-state cultivation and possession would harm Congress’ ability to eradicate reefer madness nationally.
However, in 2010 Congress allowed medical marijuana in the District of Columbia, and in 2014 it prohibited using federal funds to interfere with state marijuana regulation. So Boies’ clients — a group of Massachusetts marijuana dealers — argued that the 2005 case is outdated because Congress’ goal is no longer the complete elimination of the drug.
But the judges were skeptical during oral arguments. “Why do those two carveouts suggest that the project is over, given that the law is still in place?” asked U.S. Circuit Chief Judge David Barron. “What indicates that the goal in [the 2005 case] isn’t the same except for those two provisions?”
U.S. Circuit Judge Julie Rikelman chimedf in to note that “Congress’ goal was to control supply and demand. Why do these facts eliminate congressional authority?”
The judges also homed in on the fact that the 2005 decision was a “hard case” because it involved a woman who grew medical marijuana in her home and smoked it, which didn’t look much like commerce, whereas this case is brought by commercial cannabis dealers.
“If Congress has an interest in regulating personal cultivation, how could it not have an interest in regulating the sale?” asked Barron, a Barack Obama appointee.
“Take guns,” Barron went on, pointing to federal regulation of firearms transactions. “Can Congress regulate that? I sold it to my friend.”
Boies said guns are different because a gun could have been manufactured out-of-state or the parts might have traveled across state lines.
“Do you have to show that a gun moved in interstate commerce” before Congress can regulate its sale? Barron asked incredulously.
Boies, 83, whose other cases have involved Jeffrey Epstein, Harvey Weinstein and Theranos fraudster Elizabeth Holmes, fell back on arguing that “you have to have an elaborate analysis of adverse effect” before finding interstate commerce, and a new analysis was necessary here because the facts on the ground have changed since 2005.
Arguing for the government, Daniel Aguilar told the judges that the 2005 case was about personal cultivation, “but it’s always been a given” that Congress can act if there’s a reasonable basis to believe that in-state commerce can affect interstate commerce.
Aguilar got no tough questions from the judges, and Rikelman, a Joe Biden appointee, asked him if the court could simply dispose of the case by citing the 2005 decision or if it had to engage in the kind of elaborate analysis that Boies had urged.
Aguilar responded that he was happy either way, but the 2005 decision itself had specified that “detailed findings” as to the exact effect on interstate commerce were unnecessary.
In his brief, Boies also made a separate argument that smoking pot is a “fundamental right” under the due process clause akin to same-sex and interracial marriage. But the judges didn’t seem to think this point was even worth discussing.
U.S. Circuit Judge Lara Montecalvo, another Biden appointee, rounded out the panel.