A case is currently making its way though our legal system that could potentially bring down the very root of marijuana prohibition. The case has drawn little attention from the media, but behind the scenes, state legislatures across the nation have gotten directly involved in the effort to overturn a key New Deal- era Supreme Court case. Should they succeed even in part, the federal government’s ability to interfere in state affairs would be dramatically diminished. Success, would render the Controlled Substances Act powerless to affect intra-state activity and thus allow any state to implement reform or even full marijuana legalization without any DEA or Department of Justice trouble.
The decision that this effort seeks to overturn comes from the 1942 case of Wickard v. Filburn. Roscoe Filburn was a wheat farmer who refused to comply with a federal law that regulated how much wheat he could grow. Because he grew twice as much as he was allowed to, he was ordered to destroy the excess crops and pay a fine. Filburn then went to court and claimed that because he was gonna consume all the excess wheat himself, it would have no effect on interstate commerce and was thus beyond the reach of the federal Commerce Power since the Constitution only grants it power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”