Businesses have no fundamental right to cultivate and sell marijuana, the First Circuit held Tuesday in a case attempting to unwind the federal Controlled Substance Act.
The court rejected attorney David Boies’ argument on behalf of Massachusetts marijuana businesses over the federal law banning cultivation, transportation, and sale of state-regulated marijuana.
“The appellants’ reasoning would mean that there would be a fundamental right to grow and sell any product that founding era laws encouraged residents of that time to grow and sell,” Chief Judge David Barron wrote for the US Court of Appeals for the First Circuit. “We decline to adopt a line of reasoning that would support” such an expansion of fundamental rights, the opinion said.
The First Circuit held that the federal government can regulate marijuana commerce within a state’s borders, disagreeing with Boies’ claim that the US Constitution gives Congress the authority to regulate only trade that crosses state lines.
The judges were similarly unconvinced by the businesses’ claim that changing federal legislation and attitudes on marijuana render the US Supreme Court’s ruling in 2005 in Gonzales v. Raich void. That ruling held that Congress has the authority to apply the Controlled Substance Act to personal marijuana cultivation and possession.
“The CSA remains fully intact as to the regulation of the commercial activity involving marijuana for non-medical purposes, which is the activity in which the appellants, by their own account, are engaged,” the opinion said.
Judges Julie Rikelman and Lara Montecalvo also sat on the panel.
The businesses are represented by Boies Schiller Flexner LLP. The Justice Department represents the government.
The case is Canna Provisions, Inc. v. Bondi, 1st Cir., No. 24-01628, 5/27/25.
Businesses have no fundamental right to cultivate and sell marijuana, the First Circuit held Tuesday in a case attempting to unwind the federal Controlled Substance Act. Read More
