Marielys Rosado Barreras wrote in Law360:  “The use of marijuana (in various quantities and forms) has been legalized (in a variety of ways) in 20 states and the District of Columbia. Nonetheless, marijuana is still listed as a Schedule I controlled substance under the Controlled Substance Act (CSA), and therefore its possession, use and distribution remains a crime under federal law.  Further, the U.S. Supreme Court has ruled that the federal government has a right to regulate and criminalize the sale and use of marijuana, even when a state’s laws permit marijuana to be used for medical purposes. For example, in Gonzales v. Raich,

[1] where California had passed a law legalizing marijuana for medical use, the Supreme Court held that the Commerce Clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite state law to the contrary. As explained in Justice Antonin Scalia’s concurrence:

Not only is it impossible to distinguish ‘controlled substances manufactured and distributed intrastate’ from ‘controlled substances manufactured and distributed interstate,’ but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market — and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular state.

Thus, the court held that even small amounts of home-grown marijuana triggered the CSA because there was a threat of unwanted commodity diversion that could disrupt Congress’ regulatory control over interstate commerce. “