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Test Case for Marihuana Prohibition?

Image courtesy Seven Peaks Ventures

The federal government is out of step with the general public on marihuana. Tax questions are just the latest example. Perhaps federal tax policy could provide a test case to challenge federal marihuana prohibition and rid us of this nonsense once and for all. From Crains:

Generally speaking, legal experts agree that Opportunity Zone funding cannot directly fund a marijuana operation because cannabis is still an illegal Schedule I narcotic under the Controlled Substances Act at the federal level but could, on the other hand, provide equity to a real estate project that ultimately leases space to one or more businesses involved in the state's fledgling recreational pot industry.

Federal law supersedes state law. We must be clear: marihuana is federally illegal. It is a federal crime to posses, consume or sell marihuana.

Just because it is currently the law does not mean it's necessarily constitutional. The Feds claim authority to restrict citizen use of marihuana under the Commerce Clause in Article I, Section 8, Clause 3 of the Constitution. Congress can regulate commerce that happens between the states, not commerce that only exists within the state.

The Court--as a way of beating back the Laissez-faire style libertarian economics from the so-called "Lochner Era" and an effort to avoid FDR threats to pack the Court--took a broad view of the Commerce Clause in Wickard v. Filburn, 317 U.S. 111 (1942). A small farmer was fined because he grew wheat too much wheat in his own field for himself, thereby defying a federal law restricting the amount of wheat a person could grow. The court held that the mere fact the farmer's wheat could enter the stream of commerce meant he was subject to federal authority.

But Michigan's marihuana laws are not for interstate commerce. We have a monitoring system that specifically denies marihuana the ability to cross state lines or be sold to other states. Marihuana business is a state dealing with itself, so it could be argued that Federal Law bannning its sale is outside the bounds of the Commerce Clause.

If the federal government denies opportunity zone tax breaks to economically distressed because of the presence of marihuana, this could be an excellent test case. We should keep an eye on this.

Disclaimer: This blog was written by a second year law student, and not one of the licensed attorneys that work at Cannabis Counsel. Take it with that grain of salt.

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