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Federal Anti-Drug Laws May Violate Commerce Clause excerpt from: The Entheogen Law Reporter - Issue Eight, Fall 1995, Page 72

The Comprehensive Drug Abuse Prevention and Control Act of 1970 is the law that established the federal scheduling system for "narcotic" or "dangerous drugs. ... In enacting the federal law, Congress asserted that it was acting entirely within its power to regulate interstate commerce. (See TELR #6, page 57 for a verbatim quote from the Act itself explaining Congress' weak reasoning in this regard.) Previous legal attacks aimed at showing that the federal drugs law was not authorized by the Commerce Clause have all been rejected under Supreme Court precedent which has historically permitted Congress broad powers in this area [1]. However, [...] "the law" is ever changing and presents few bright lines. A new case can entirely dismantle decades of line-drawing and statutory or constitutional interpretation. Just such a case was recently decided by the United States Supreme Court, calling into question the constitutionality of the federal anti-drug law. In United States v. Lopez[2], decided on April 26, 1995, the Supreme Court struck down the federal law which made it a crime to possess a gun within 1000 feet of a school [3].This was the Supreme Court directly telling the Congress that it had overstepped it's powers. The gun law, said the Court, was only tangentially related to interstate commerce and, hence, would not be justified under the Commerce Clause. Interstate commerce, found the Court, was not "substantially affected" by someone possessing a gun near a school. Commenting on the Lopez decision, constitutional law scholar, Erwin Chemerinsky, recently questioned whether many federal drug laws might be vulnerable to a renewed attack on the ground that they do not fall withing the Commerce Clause and, hence, are outside Congress' regulatory power. Discussing the potential wide-spread ramifications of Lopez, Professor Chemerinsky explained: The majority's narrow definition of Congress' powers gives the Court a basis for striking down countless federal laws. For example, many federal drug laws might be vulnerable because they regulate activities that are only tangentially related to interstate commerce. Likewise Lopez can be used to challenge federal RICO prosecutions where there is not a strong relationship between the activity and interstate commerce.... The Lopez decision opens a door to constitutional challenges that appeared to have been closed almost 60 years ago. [4] ... Notes: [1] In a 1964 opinion, the Court stated, "the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses had been frequently sustained, and is no longer open to question." Heart of Atlanta Motel, Inc. v. U.S. (1964) 379 U.S.241,256[85 S.Ct.348,13,L.Ed.2d 258].) [2]U.S. v Lopez (1995) 115 S.Ct. 1624, 131 L.Ed.2d 636. [3]Gun-Free School Zone Act of 1990; 18 U.S.C. sec 992(q)(1)(a) & 921(a)(25). [4]Chemerinsky, E. "Interpreting the Constitution: A Dramatic Conservative Turn" in August 9-16, 1995 Res Ipsa 11. Click here for the full text of this article.