Amicus Curiae Brief — Canna Provisions, Inc., et al., Petitioners, v. Pamela J. Bondi, Attorney General

No. 25-518

IN THE

Supreme Court of the United States

_________________________________________________

CANNA PROVISIONS, INC.; GYASI SELLERS; WISEACRE

FARM, INC.; VERANO HOLDINGS CORP.,

Petitioners,

v.

PAMELA J. BONDI, IN HER OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 19, 2025

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................2

Argument .....................................................................4

I.

Federalism Protects Liberty .............................4

II.

Congress’s Legislative Power Is Not Plenary

But Narrow and Limited ..................................6

A. The Commerce Clause Only Grants Congress

the Power to Regulate Interstate Trade and

Transportation ..................................................8

B. The Necessary and Proper Clause Is Not a

Free-Standing Source of Federal Power ........11

III.

The “Substantial Effects” Test For Federal

Power Has No Basis In the Constitution.......15

IV.

Raich Allows Congress to Reach Private

Conduct Lacking Any Demonstrable Nexus

With Interstate Commerce .............................18

V.

The Time Has Come to Repudiate Raich’s

“Rational Basis” Gloss ....................................20

Conclusion .................................................................22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corp. v. United

States,

295 U.S. 495 (1935) ........................................... 16

Alderman v. United States,

562 U.S. 1163 (2011) ......................................... 17

Am. Trucking Ass’ns v. City of L.A.,

569 U.S. 641 (2013) ..................................... 10, 11

Artis v. District of Columbia,

583 U.S. 71 (2018) ............................................. 14

Bond v. United States,

564 U.S. 211 (2011) ............................................. 5

Bond v. United States,

572 U.S. 844 (2014) ....................................... 4, 14

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) ............................................. 9

Chiafalo v. Washington,

591 U.S. 578, 605 (2020) ..................................... 6

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ............................. 5

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................. 8

iii

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ....................... 6, 9, 10

Gonzales v. Raich,

545 U.S. 1 (2005) ..2, 4, 5, 9, 14, 16, 18, 19, 20, 21

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................. 4

Haaland v. Brackeen,

599 U.S. 255 (2023) ........................................... 10

Hodel v. Va. Surface Mining & Reclamation

Ass’n,

452 U.S. 264 (1981) ..................................... 15, 18

Kidd v. Pearson,

128 U.S. 1 (1888) ................................................. 9

Kinsella v. United States,

361 U.S. 234 (1960) ........................................... 12

License Tax Cases,

72 U.S. (5 Wall.) 462 (1867) .............................. 11

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .............................. 7

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ............................. 6

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................. 6, 12, 13

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ............................................. 5

iv

New York v. United States,

505 U.S. 144 (1992) ............................................. 5

NFIB v. Sebelius,

567 U.S. 519 (2012) ......................... 4, 5, 7, 18, 19

Printz v. United States,

521 U.S. 898 (1997) ....................................... 5, 11

Rancho Viejo, LLC v. Norton,

334 F.3d 1158 (D.C. Cir. 2003) ......................... 17

Reid v. Covert,

354 U.S. 1 (1957) ................................................. 6

Sabri v. United States,

541 U.S. 600 (2004) ........................................... 13

Sackett v. EPA,

598 U.S. 651 (2023) ................................. 8, 15, 16

Siegel v. Fitzgerald,

596 U.S. 464 (2022) ........................................... 13

Shelby Cty. v. Holder,

570 U.S. 529 (2013) ............................................. 6

Standing Akimbo, LLC v. United States,

141 S. Ct. 2236 (2021) ....................................... 21

Taylor v. United States,

579 U.S. 301 (2016) ................................. 8, 17, 19

Tex. Top Cop Shop, Inc. v. Garland,

758 F. Supp. 3d 607 (E.D. Tex. 2024) ............... 20

v

United States v. Comstock,

560 U.S. 126 (2010) ................... 11, 12, 13, 15, 19

United States v. Darby,

312 U.S. 100 (1941) ........................................... 16

United States v. Dewitt,

76 U.S. (9 Wall.) 41 (1869) .......................... 11, 13

United States v. E.C. Knight Co.,

156 U.S. 1 (1895) ............................................... 11

United States v. Kebodeaux,

570 U.S. 387 (2013) ......................................... 4, 5

United States v. Lopez,

514 U.S. 549 (1995) . 3, 7, 9, 10, 15, 16, 17, 18, 21

United States v. Morrison,

529 U.S. 598 (2000) ....................... 6, 7, 15, 17, 20

United States v. Rife,

33 F.4th 838 (6th Cir. 2022) ..................... 8, 9, 17

U.S. Term Limits v. Thornton,

514 U.S. 779 (1995) ......................................... 4, 6

Wickard v. Filburn,

317 U.S. 111 (1942) ........................... 3, 16, 18, 19

Zivotofsky v. Kerry,

576 U.S. 1 (2015) ............................................... 14

Constitution

U.S. Const., art. I, § 1 ............................................... 7

vi

U.S. Const., art. I, § 8 ............................................... 7

U.S. Const., art. I, § 8, cl. 3 .................................. 3, 7

U.S. Const., art. I, § 8, cl. 18 .............. 3, 7, 12, 13, 15

U.S. Const. amend. X ....................................... 3, 6, 7

Rules

Sup. Ct. Rule 37.2..................................................... 1

Other Authorities

Albert Abel,

The Commerce Clause in the

Constitutional Convention and in

Contemporary Comment,

25 Minn. L. Rev. 432 (1941).................. 10, 11, 15

Antonin Scalia,

Foreword: The Importance of Structure

in Constitutional Interpretation,

83 Notre Dame L. Rev. 1417 (2008) ................... 5

Federalist No. 28 (Hamilton) ................................... 5

Federalist No. 45 (Madison)..................................... 7

Federalist No. 51 (Madison)..................................... 5

Gary Lawson & Patricia Granger,

The “Proper” Scope of Federal Power: A

Jurisdictional Interpretation of the

Sweeping Clause,

43 Duke L. J. 267 (1993) ............................. 13, 14

vii

N. Webster’s 1828 Dictionary ............................ 8, 14

Randy Barnett,

New Evidence of the Original Meaning of

the Commerce Clause,

55 Ark. L. Rev. 847 (2003) .................................. 9

Randy Barnett,

The Original Meaning of the Commerce

Clause,

68 U. Chi. L. Rev. 101 (2001)...................... 10, 11

Randy Barnett,

The Original Meaning of the Necessary

and Proper Clause,

6 U. Pa. J. Const. L. 183 (2003) ........................ 12

S. Johnson, A Dictionary of the English

Language (6th ed. 1785) ..................................... 8

Steven Calabresi, Elise Kostial, and Gary

Lawson,

What McCulloch v. Maryland Got

Wrong: The Original Meaning of

“Necessary” Is Not “Useful,”

“Convenient,” or “Rational,”

75 Baylor L. Rev. 1 (2023) .......................... 13, 19

William J. Seidleck,

Originalism and the General

Concurrence: How Originalists Can

Accommodate Entrenched Precedents

While Reining in Commerce Clause

Doctrine,

3 U. Pa. J. L. & Pub. Affs. 263 (2018) ................ 9

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioners.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

Some of those key ideas include the vertical and

horizontal separation of powers, federalism, and

constitutionally limited government. As part of this

mission, AFPF appears as amicus curiae before state

and federal courts.

AFPF believes that under the U.S. Constitution,

the general power of governing rests with the States—

not the federal government—and that most decisions

should be made at the state and local levels, reflecting

the needs and priorities of their communities. AFPF

writes here to address why the Controlled Substances

Act (“CSA”), as applied to Petitioners, exceeds

constitutional limits on federal authority as an

original matter and cannot be squared with basic

1 All parties have received timely notice of amicus curiae’s intent

to file this brief. Amicus curiae states that no counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amicus curiae or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

principles of federalism. More broadly, AFPF believes

that Gonzales v. Raich, 545 U.S. 1 (2005)—a

constitutional aberration granting the federal

government authority to trample on States’ core

power to choose whether and how to regulate local

private conduct—was wrongly decided and should be

squarely overruled.

SUMMARY OF ARGUMENT

This case is not about sound public policy or the

wisdom of Massachusetts’ regulatory choices. The core

question here is whether the federal government may

trespass on and override exercises of States’

traditional police power to regulate purely local

activity and decide for themselves how best to protect

the health, safety, and welfare of their residents.

Under our system of federalism, the answer is no.

To doubly protect individual liberty, the U.S.

Constitution not only separates legislative, executive,

and judicial power but further splits government

power between two separate sovereigns: the States

and the federal government. This vertical and

horizontal diffusion of power is designed to minimize

the risk of tyranny and abuse at either level. The

Constitution’s structural safeguards of liberty also

give wide latitude to state and local governments to

experiment and make policy choices that work for

their communities.

Federalism is a distinctly American innovation

pioneered by the Framers. Under this system of dual

sovereignty, the federal government’s powers are not

unlimited but rather narrow and defined. Thus, while

the Constitution grants Congress authority “to

3

regulate Commerce” “among the several States,” U.S.

Const., art. I, § 8, cl. 3, and “make all Laws which shall

be necessary and proper for carrying into Execution”

that power, id. cl. 18, it does not grant the federal

government a general police power. The Constitution

reserves that power to the States. Id. amend. X.

As applied to Petitioners—which “cultivate,

manufacture, possess, and/or distribute marijuana

wholly within Massachusetts in full compliance with

its laws and regulations,” App. 2a; see App. 31a—the

CSA is an affront to our system of federalism. It

federally criminalizes wholly intrastate activity not

intended for and without any empirically

demonstrable link to interstate commerce. This

assertion of general police power is unconstitutional.

More broadly, Petitioners highlight fundamental

problems with this Court’s current Commerce Clause

jurisprudence and the need for a course correction.

The judicially created “substantial effects” test

flowing from Wickard v. Filburn, 317 U.S. 111 (1942),

and related precedent, strays from the Constitution’s

original public meaning to expand the scope of federal

regulatory power well beyond that which the People

agreed to surrender. Worse still, Raich’s “rational

basis” gloss on Wickard gives the federal government

almost unlimited authority over local conduct.

This judicial rewrite of the Constitution should not

be allowed to stand. The Petition provides an ideal

vehicle to begin to “temper” this Court’s “Commerce

Clause jurisprudence in a manner that both makes

sense of [its] more recent case law and is more faithful

to the original understanding.” United States v. Lopez,

514 U.S. 549, 584 (1995) (Thomas, J., concurring).

4

This Court should sweep Raich into the dustbin and

squarely overrule it.

For the foregoing reasons, this Court should grant

the Petition.

ARGUMENT

I.

Federalism Protects Liberty.

“[O]ur Constitution establishes a system of dual

sovereignty between the States and the Federal

Government,” Gregory v. Ashcroft, 501 U.S. 452, 457

(1991), and “split[s] the atom of sovereignty” between

these two spheres of government, U.S. Term Limits v.

Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J.,

concurring). Under our federalist system, “[t]he States

have broad authority to enact legislation for the public

good—what we have often called a ‘police power.’ The

Federal Government, by contrast, has no such

authority[.]”2 Bond v. United States (Bond II), 572

U.S. 844, 854 (2014) (cleaned up); see Raich, 545 U.S.

at 66 (Thomas, J., dissenting) (noting “States’

traditional police powers to define the criminal law

and to protect the health, safety, and welfare of their

citizens”). This means that the “general power of

governing” belongs to the States, not the federal

government. See NFIB v. Sebelius, 567 U.S. 519, 535–

36 (2012). “[A] federal police power” simply “does not

exist.” United States v. Kebodeaux, 570 U.S. 387, 402

“Where the Constitution is silent about the exercise of a

particular power . . . the Federal Government lacks that power

and the States enjoy it.” U.S. Term Limits, 514 U.S. at 848

(Thomas, J., dissenting).

2

5

(2013) (Roberts, C.J., concurring); see Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821)

(“Congress cannot punish felonies generally[.]”).

This vertical separation of powers “is one of the

Constitution’s structural protections of liberty.”

Printz v. United States, 521 U.S. 898, 921 (1997); see

Antonin Scalia, Foreword: The Importance of

Structure in Constitutional Interpretation, 83 Notre

Dame L. Rev. 1417, 1418–19 (2008). “State

sovereignty is not just an end in itself: Rather,

federalism secures to citizens the liberties that derive

from the diffusion of sovereign power.” New York v.

United States, 505 U.S. 144, 181 (1992) (cleaned up).

It is “a check on the power of the Federal

Government[.]” NFIB, 567 U.S. at 536. “By denying

any one government complete jurisdiction over all the

concerns of public life, federalism protects the liberty

of the individual from arbitrary power.” Bond v.

United States (Bond I), 564 U.S. 211, 222 (2011). Dual

sovereignty provides “a double security [] to the rights

of the people.” Federalist No. 51 (Madison). This

structural guardrail against tyranny ensures that “[i]f

their rights are invaded by either, they can make use

of the other as the instrument of redress.” Federalist

No. 28 (Hamilton). Federalism also “promotes

innovation by allowing for the possibility that ‘a single

courageous State may, if its citizens choose, serve as

a laboratory; and try novel social and economic

experiments without risk to the rest of the country.’”

Raich, 545 U.S. at 42 (O’Connor, J., dissenting)

(quoting New State Ice Co. v. Liebmann, 285 U.S. 262,

311 (1932) (Brandeis, J., dissenting)).

6

II.

Congress’s Legislative Power Is

Plenary But Narrow and Limited.

Not

Principles of federalism are enshrined in our

Constitution’s text and structure. The federal

government “is entirely a creature of the

Constitution” and therefore “[i]ts power and authority

have no other source.”3 Reid v. Covert, 354 U.S. 1, 5–6

(1957) (plurality). Under the Constitution, it is “one of

enumerated powers.” McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 405 (1819). “The enumeration

presupposes something not enumerated[.]” Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824). Simply put,

that document “cannot realistically be interpreted as

granting the Federal Government an unlimited

license to regulate.” United States v. Morrison, 529

U.S. 598, 618 n.8 (2000).

To the contrary, the federal government “can claim

no powers which are not granted to it by the

[C]onstitution, and the powers actually granted, must

be such as are expressly given, or given by necessary

implication.”4 Martin v. Hunter’s Lessee, 14 U.S. (1

Wheat.) 304, 326 (1816). Those powers are “few and

defined” and were meant to “be exercised principally

3 The federal government’s “only true source of power” is “the

people of the several States[.]” U.S. Term Limits, 514 U.S. at 847

(Thomas, J., dissenting).

“[T]he Constitution provides that all powers not specifically

granted to the Federal Government are reserved to the States or

citizens.” Shelby Cty. v. Holder, 570 U.S. 529, 543 (2013) (citing

U.S. Const. amend. X). Where it “is silent, authority resides with

the States or the people.” Chiafalo v. Washington, 591 U.S. 578,

605 (2020) (Thomas, J., concurring in judgment).

4

7

on external objects, as war, peace, negotiation, and

foreign commerce[.]” Federalist No. 45 (Madison). By

contrast, the Constitution reserved to the States

“numerous and indefinite” powers that “extend to all

the objects” that “concern the lives, liberties, and

properties of the people, and the internal order,

improvement, and prosperity of the State.” Id.; see

U.S. Const. amend. X. This federalist structure was

created to ensure “a healthy balance of power between

the States and the Federal Government [and] reduce

the risk of tyranny and abuse from either front.”

Lopez, 514 U.S. at 552 (cleaned up).

To exercise power, the federal government “must

show that a constitutional grant of power authorizes

each of its actions.” NFIB, 567 U.S. at 535. “Every law

enacted by Congress must be based on one or more of

its powers enumerated in the Constitution.” Morrison,

529 U.S. at 607. Without a constitutional grant of

authority to Congress, it simply cannot act. See

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)

(“The powers of the legislature are defined, and

limited; and that those limits may not be mistaken, or

forgotten, the constitution is written.”).

Congress’s limited legislative powers are

enumerated in Article I of the Constitution. See U.S.

Const. art. I, §§ 1, 8. As relevant here, Article I grants

Congress authority “to regulate Commerce” “among

the several States,” id. § 8, cl. 3, and the power to

“make all Laws which shall be necessary and proper

for carrying into Execution” its enumerated powers,

id. cl. 18. Neither provision authorizes the federal

government to regulate wholly intrastate conduct that

is not intended to and does not enter the stream of

interstate commerce.

8

A. The Commerce Clause Only Grants

Congress

the

Power

to

Regulate

Interstate Trade and Transportation.

“[A]s originally understood,” the Commerce Clause

“empower[ed] Congress to regulate the buying and

selling of goods and services trafficked across state

lines.” Taylor v. United States, 579 U.S. 301, 313

(2016) (Thomas, J., dissenting) (cleaned up). Its “text,

structure, and history all indicate that, at the time of

the founding, the term ‘commerce’ consisted of selling,

buying, and bartering, as well as transporting for

these purposes.” Sackett v. EPA, 598 U.S. 651, 708

(2023) (Thomas, J., concurring) (cleaned up).

“Constitutional analysis must begin with ‘the

language of the instrument,’ which offers a ‘fixed

standard’ for ascertaining what our founding

document means.” Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 235 (2022) (citations omitted).

“The public meaning of ‘commerce’ at the time of the

Constitution’s ratification was hardly obscure[.] . . .

‘Commerce,’ at that time, meant ‘trade’ or economic

‘intercourse,’ which consisted of ‘exchange of one

thing for another,’ ‘interchange,’ or ‘traffick.’” United

States v. Rife, 33 F.4th 838, 842 (6th Cir. 2022) (citing

1 S. Johnson, A Dictionary of the English Language

422 (6th ed. 1785)); see N. Webster’s 1828 Dictionary

(defining “commerce” as “an interchange or mutual

change of goods, wares, productions, or property of

any kind, between nations or individuals, either by

barter, or by purchase and sale; trade; traffick”).

As Chief Justice Marshall put it: “Commerce,

undoubtedly, is traffic, but it is something more: it is

intercourse. It describes the commercial intercourse

9

between nations, and parts of nations, in all its

branches[.]” Gibbons, 22 U.S. (9 Wheat.) at 189–90.

Cf. Carter v. Carter Coal Co., 298 U.S. 238, 298 (1936)

(“[T]he word ‘commerce’ is the equivalent of the

phrase ‘intercourse for the purposes of trade,’ and

includes transportation, purchase, sale, and exchange

of commodities between the citizens of the different

states.”). Consistent with that description, “when

Federalists and Anti-Federalists discussed the

Commerce Clause during the ratification period, they

often used trade (in its selling/bartering sense) and

commerce interchangeably.” Lopez, 514 U.S. at 586

(Thomas, J., concurring). At the founding, the general

public also commonly understood “commerce” to have

this meaning. See Raich, 545 U.S. at 59 (Thomas, J.,

dissenting) (citing Randy Barnett, New Evidence of

the Original Meaning of the Commerce Clause, 55 Ark.

L. Rev. 847, 857–62 (2003)).

This understanding of commerce “stood in

contrast to productive activities like manufacturing

and agriculture.” Raich, 545 U.S. at 58 (Thomas, J.,

dissenting); see Kidd v. Pearson, 128 U.S. 1, 20 (1888)

(contrasting commerce with manufacturing). “[T]he

founding generation would not have seen production

activities . . . as being part of commerce.” William J.

Seidleck, Originalism and the General Concurrence:

How Originalists Can Accommodate Entrenched

Precedents While Reining in Commerce Clause

Doctrine, 3 U. Pa. J. L. & Pub. Affs. 263, 269 (2018).

In short, when the Constitution was ratified, the

public meaning of “[c]ommerce itself” was “trade and

transportation thereof, as opposed to activities

preceding those things.” Rife, 33 F.4th at 842

(citations omitted); see Lopez, 514 U.S. at 587

10

(Thomas,

J.,

concurring)

(“Agriculture

and

manufacturing involve the production of goods;

commerce encompasses traffic in such articles.”). And

“despite being well aware that agriculture,

manufacturing, and other matters substantially

affected commerce, the founding generation did not

cede authority over all these activities to Congress.”5

Lopez, 514 U.S. at 591 (Thomas, J., concurring).

As a further limitation, as originally understood

the Clause empowered Congress to regulate interstate

(as opposed to intrastate) trade and transportation.

And the Clause’s plain text “strongly supports a

conclusion that the phrase ‘among the several States’

refers to ‘between people of different states.’” Randy

Barnett, The Original Meaning of the Commerce

Clause, 68 U. Chi. L. Rev. 101, 132 (2001). That is,

“Congress’s power under the Interstate Commerce

Clause operates only on commerce that involves ‘more

States than one.’” Haaland v. Brackeen, 599 U.S. 255,

323 (2023) (Gorsuch, J., concurring) (quoting Gibbons,

22 U.S. (9 Wheat.) at 194).

As a matter of first principles, “the Constitution

does not give Congress power to regulate intrastate

commerce.” Am. Trucking Ass’ns v. City of L.A., 569

5 Given its limited intended scope, the Framers did not view the

Commerce Clause as a threat to liberty. James Madison, for

example, characterized it as “an addition which few oppose and

from which no apprehensions are entertained.” Federalist No.

45. Tellingly, no one at the Constitutional Convention cited it “as

the basis for independent affirmative regulation by the federal

government.” Albert Abel, The Commerce Clause in the

Constitutional Convention and in Contemporary Comment, 25

Minn. L. Rev. 432, 471 (1941).

11

U.S. 641, 655 (2013) (Thomas, J., concurring) (citation

omitted); see License Tax Cases, 72 U.S. (5 Wall.) 462,

470–71 (1867) (“Congress has no power of regulation

nor any direct control” over “internal commerce or

domestic trade of the States”). Indeed, in United

States v. Dewitt, 76 U.S. (9 Wall.) 41 (1869), this Court

described the Clause “as a virtual denial of any power

to interfere with the internal trade and business of the

separate States; except, indeed, as a necessary and

proper means for carrying into execution some other

power expressly granted or vested,” id. at 43–44. Cf.

United States v. E.C. Knight Co., 156 U.S. 1, 13 (1895).

In sum, the Commerce Clause gives Congress

“power to specify rules to govern the manner by which

people may exchange or trade goods from one state to

another[.]” Barnett, 68 U. Chi. L. Rev. at 146. As

conceived by the Framers and memorialized in the

Constitution, “[i]t was a shield against state exactions

and no two-edged sword for positive federal attack.”

Abel, 25 Minn. L. Rev. at 469. But that is all.

B. The Necessary and Proper Clause Is Not a

Free-Standing Source of Federal Power.

Nor does the Necessary and Proper Clause

authorize Congress to reach intrastate matters the

Constitution reserves to the States. See U.S. Const.

amend. X. Justice Scalia colorfully described the

Clause as the “best hope of those who defend ultra

vires congressional action[.]” Printz, 521 U.S. at 923.

But it “does not give Congress carte blanche.” United

States v. Comstock, 560 U.S. 126, 158 (2010) (Alito, J.,

concurring). It “is not itself a grant of power, but a

caveat that the Congress possesses all the means

necessary to carry out the specifically granted

12

‘foregoing’ powers of § 8 ‘and all other Powers vested

by this Constitution[.]’” Kinsella v. United States, 361

U.S. 234, 247 (1960). The “Clause empowers Congress

to enact only those laws that ‘carr[y] into Execution’

one or more of the federal powers enumerated in the

Constitution.” Comstock, 560 U.S. at 159 (Thomas, J.,

dissenting) (quoting U.S. Const. art. I, § 8, cl. 18). It is

not a free-floating source of federal power and thus

cannot save laws that are untethered to any of

Congress’s enumerated powers.6

As Chief Justice Marshall described the Clause’s

sweep: “Let the end be legitimate, let it be within the

scope of the constitution, and all means which are

appropriate, which are plainly adapted to that end,

which are not prohibited, but consist with the letter

and spirit of the constitution, are constitutional.”

McCulloch, 17 U.S. (4 Wheat.) at 421. This means that

for a law to fall within the scope of Congress’s power

under the Necessary and Proper Clause it “must be

directed toward . . . the powers expressly delegated to

the Federal Government by some provision in the

Constitution,” and “there must be a necessary and

proper fit between the ‘means’ (the federal law) and

the ‘end’ (the enumerated power or powers) it is

designed to serve.” Comstock, 560 U.S. at 160

(Thomas, J., dissenting). It cannot be used to evade

6 Federalists “insisted” it “was not an additional freestanding

grant of power, but merely made explicit what was already

implicit in the grant of each enumerated power.” Randy Barnett,

The Original Meaning of the Necessary and Proper Clause, 6 U.

Pa. J. Const. L. 183, 185 (2003).

13

constitutional limits on Congress’s legislative power.

See, e.g., Siegel v. Fitzgerald, 596 U.S. 464, 474 (2022).

To the contrary, as a textual matter, the Clause

requires that a law must be both “necessary and

proper[.]” U.S. Const. art. I, § 8, cl. 18. These are

“distinct requirements[.]” Gary Lawson & Patricia

Granger, The “Proper” Scope of Federal Power: A

Jurisdictional Interpretation of the Sweeping

Clause, 43 Duke L. J. 267, 276 (1993). “[T]he word

‘necessary’ . . . refers to a telic relationship, or fit,

between executory laws and valid government ends.”7

Id. at 272. “The means Congress selects will

be deemed ‘necessary’ if they are ‘appropriate’ and

‘plainly adapted’ to the exercise of an enumerated

power[.]” Comstock, 560 U.S. at 160–61 (Thomas, J.,

dissenting) (quoting McCulloch, 17 U.S. (4 Wheat.) at

421). “Plainly adapted” connotes “some obvious,

simple, and direct relation between the statute and

the enumerated power.”8 Sabri v. United States, 541

U.S. 600, 613 (2004) (Thomas, J., concurring). Cf.

Dewitt, 76 U.S. (9 Wall.) at 44 (intrastate “prohibition

of the sale of the illuminating oil” not “appropriate

7 Founding-era “dictionary definitions and the word’s etymology”

suggest “the best synonyms of ‘necessary’ are ‘needful and

proper’ or ‘congruent and proportional,’ not ‘useful’ and

‘convenient.’” Steven Calabresi, Elise Kostial, and Gary Lawson,

What McCulloch v. Maryland Got Wrong: The Original Meaning

of “Necessary” Is Not “Useful,” “Convenient,” or “Rational,” 75

Baylor L. Rev. 1, 47 (2023).

8 “‘[A]ppropriate’ and ‘plainly adapted’ are hardly synonymous

with ‘means-end rationality.’” Sabri, 541 U.S. 612 (Thomas, J.,

concurring in the judgment).

14

and plainly adapted for carrying into execution”

Congress’s taxing power).

“The word ‘proper’ was ‘used during the founding

era to describe the powers of a governmental entity as

peculiarly within the province or jurisdiction of that

entity.’” Artis v. District of Columbia, 583 U.S. 71, 106

(2018) (Gorsuch, J., dissenting) (quoting Lawson &

Granger, 43 Duke L. J. at 297); see N. Webster’s 1828

Dictionary (“Proper” means “1. Peculiar; naturally or

essentially belonging to a person or thing; not

common.”). “To be ‘proper,’ a law must fall within the

peculiar competence of Congress under the

Constitution.” Zivotofsky v. Kerry, 576 U.S. 1, 48

(2015) (Thomas, J., concurring in judgment,

dissenting in part). “Our constitutional structure

imposes three key limitations on that jurisdiction: It

must conform to (1) the allocation of authority within

the Federal Government, (2) the allocation of power

between the Federal Government and the States, and

(3) the protections for retained individual rights under

the Constitution.” Id. (Thomas, J., concurring in

judgment, dissenting in part) (citation omitted).

“No law that flattens the principle of state

sovereignty, whether or not ‘necessary,’ can be said to

be ‘proper.’” Bond II, 572 U.S. at 879 (Scalia, J.,

concurring in judgment). “Congress cannot use its

authority under the Clause to contravene the

principle of state sovereignty embodied in the Tenth

Amendment.” Raich, 545 U.S. at 52 (O’Connor, J.,

dissenting). And “no matter how ‘necessary’ or ‘proper’

an Act of Congress may be to its objective, Congress

lacks authority to legislate if the objective is anything

other than ‘carrying into Execution’ one or more of the

Federal

Government’s

enumerated

powers.”

15

Comstock, 560 U.S. at 161 (Thomas, J., dissenting)

(quoting U.S. Const. art. I, § 8, cl. 18). That is the

equilibrium between State and federal power the

Constitution demands.

III.

The “Substantial Effects” Test For Federal

Power Has No Basis In the Constitution.

Over time, however, that constitutionally required

balance has broken down as Congress’s authority to

regulate commerce “has evolved,” Hodel v. Va. Surface

Mining & Reclamation Ass’n, 452 U.S. 264, 308 (1981)

(Rehnquist, J., concurring in judgment), through a

process of accretion over a series of this Court’s cases.

And this “Court’s Commerce Clause jurisprudence

has significantly departed from the original meaning

of the Constitution.” Sackett, 598 U.S. at 708

(Thomas, J., concurring). While the People, through

the Constitution, gave Congress “a mild, modest little

power” to regulate domestic commerce among the

States, “[t]he commerce power that the courts have

given Congress is a rather formidable creation of

indefinite extent which federalizes, so to speak,

whatever it touches.” Abel, 25 Minn. L. Rev. at 481.

The “rootless and malleable,” Morrison, 529 U.S. at

627 (Thomas, J., concurring), substantial-effects test

is a prime example of this serious constitutional

problem.

“The Constitution not only uses the word

‘commerce’ in a narrower sense than [this Court’s]

case law might suggest, it also does not support the

proposition that Congress has authority over all

activities that ‘substantially affect’ interstate

commerce.” Lopez, 514 U.S. at 587 (Thomas, J.,

concurring). But “[i]n the New Deal era . . . this Court

16

adopted a greatly expanded conception of Congress’

commerce authority by permitting Congress to

regulate any private intrastate activity that

substantially affects interstate commerce, either by

itself or when aggregated with many similar

activities.”9 Sackett, 598 U.S. at 696 (Thomas, J.,

concurring) (citing Wickard, 317 U.S. at 127–29;

United States v. Darby, 312 U.S. 100, 119 (1941)). But

cf. A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495, 551 (1935) (“attempted regulation of

intrastate transactions which affect interstate

commerce only indirectly” exceed constitutional limits

on federal power). These decisions “ushered in an era

of Commerce Clause jurisprudence that greatly

expanded the previously defined authority of

Congress under that Clause.” Lopez, 514 U.S. at 556.

“By departing from” the Clause’s “limited

meaning,” this line of precedent “ha[s] licensed federal

regulatory schemes that would have been unthinkable

to the Constitution’s Framers and ratifiers.” Sackett,

598 U.S. at 708–09 (Thomas, J., concurring) (cleaned

up); see, e.g., Raich, 545 U.S. 1 (local cultivation of

marijuana); Wickard, 317 U.S. 111 (local wheat

farming). And it has led us to a strange place where,

for example, federally “regulating the taking of a

hapless toad that, for reasons of its own, lives its

Importantly, “activities that substantially affect interstate

commerce are not themselves part of interstate commerce, and

thus the power to regulate them cannot come from the Commerce

Clause alone.” Raich, 545 U.S. at 34 (Scalia, J., concurring).

Under current precedent, this power “derives from the Necessary

and Proper Clause.” Id. (Scalia, J., concurring). But see Lopez,

514 U.S. at 588–89 (Thomas, J., concurring).

9

17

entire life in California constitutes regulating

‘Commerce . . . among the several States.’” Rancho

Viejo, LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir.

2003) (Roberts, J., dissenting from denial of rehearing

en banc) (citation omitted). This Alice-in-Wonderland

understanding of interstate commerce defies common

sense and is at odds with the Constitution’s text,

history, and structure.

“[T]he very notion of a ‘substantial effects’ test

under the Commerce Clause is inconsistent with the

original understanding of Congress’ powers and with

th[e Supreme] Court’s early Commerce Clause cases.”

Morrison, 529 U.S. at 627 (Thomas, J., concurring);

see Lopez, 514 U.S. at 599 (Thomas, J., concurring)

(noting test’s “recent vintage”). And today this judicial

addition to the Constitution “has come to overshadow

the original structure to which it was attached,” Rife,

33 F.4th at 843, severely distorting the division of

sovereign powers memorialized in that document and

threatening individual liberty in the process.

With the notable exception of Raich, even this

Court’s more modern “precedents emphasize that

‘[t]he Constitution requires a distinction between

what is truly national and what is truly local.’ The

substantial-effects approach is at war with that

principle.”10 Taylor, 579 U.S. at 319 (Thomas, J.,

dissenting) (quoting Morrison, 529 U.S. at 617–18).

This holds particularly true for the test’s “aggregation

10 Lopez “took a significant step toward reaffirming this Court’s

commitment to proper constitutional limits on Congress’

commerce power.” Alderman v. United States, 562 U.S. 1163,

1168 (2011) (Thomas, J., dissenting from denial of certiorari).

18

principle,” which “has no stopping point.” Lopez, 514

U.S. at 600 (Thomas, J., concurring).

IV.

Raich Allows Congress to Reach Private

Conduct Lacking Any Demonstrable

Nexus With Interstate Commerce.

It gets worse. The “substantial effects” gloss on

Congress’s power to regulate interstate commerce

flowing from New Deal-era precedent like Wickard,

317 U.S. 111, allowed the federal government to reach

a wide swath of private activity the Framers wisely

left to the States. But Raich goes one step further by

severing any meaningful link between an actual,

empirically demonstrable effect on interstate

commerce and Congress’s authority to regulate. It

does so by importing the deferential “rational basis”

standard into the already lax substantial-effects

inquiry. See Raich, 545 U.S. at 22. Under Raich, the

federal government can “regulate intrastate activity

without check, so long as there is some implication by

legislative design that regulating intrastate activity is

essential,” id. at 46 (O’Connor, J., dissenting), even

where doing so intrudes on “States’ core police

power[]” “to protect the health, safety, and welfare of

their citizens,” id. at 42 (O’Connor, J., dissenting).

“One searches” the majority opinion “in vain for any

hint of what aspect of American life is reserved to the

States.” Id. at 70 (Thomas, J., dissenting).

Wickard, which “expanded the scope of the

Commerce Clause” to authorize federal regulation of

local activity “such as a wheat farmer’s own

production,” Hodel, 452 U.S. at 308 (Rehnquist, J.,

concurring in the judgment), “has been regarded as

the most expansive assertion of the commerce power

19

in our history,” NFIB, 567 U.S. at 657 (Scalia, J.,

dissenting).11 But even Wickard at least emphasized

that “questions of the power of Congress are not to be

decided by reference to any formula” that “foreclose[s]

consideration of the actual effects of the activity in

question upon interstate commerce.” 317 U.S. at 120

(emphasis added). There, this Court had “real

numbers at hand” and “review[ed] in detail” on

stipulated facts the actual impact of the intrastate

conduct on interstate commerce. See Raich, 545 U.S.

at 53 (O’Connor, J., dissenting). “[T]he record in the

Wickard case itself established the causal connection

between the production for local use and the national

market[.]” Id. at 20 (majority op.). Under that

analysis, Congress’s power only extends to conduct

that actually—as opposed to conceivably—affects

interstate commerce. See id. at 50–55 (O’Connor, J.,

dissenting).

Raich misread Wickard and removed even that

modest speedbump, reasoning that there is no “need”

to “determine whether” wholly intrastate “activities,

taken in the aggregate, substantially affect interstate

commerce in fact, but only whether a ‘rational basis’

exists for so concluding.”12 Id. at 22 (majority op.); see

Taylor, 579 U.S. at 320 (Thomas, J., dissenting). But

cf. Comstock, 560 U.S. at 152 (Kennedy, J., concurring

in the judgment) (“The rational basis referred to in

the Commerce Clause context is a demonstrated link

11 Wickard may well be a “Necessary and Proper Clause case

disguised as a Commerce Clause case[.]” Calabresi et al., 75

Baylor L. Rev. at 75. If so, it should be unmasked as such.

12 The Raich majority mistakenly read Wickard as a rationalbasis case. See 545 U.S. at 19. Not so. See Pet. 21–24.

20

in fact, based on empirical demonstration.”). This

judicial innovation expanded federal power to

regulate, prohibit, and even criminalize intrastate

activity, such as “the local cultivation and use of

marijuana in compliance with [State] law,” Raich, 545

U.S. at 5, even farther beyond constitutional

boundaries. Raich thus took yet another step toward

granting the federal government the general police

power the Framers denied it, turning the Tenth

Amendment on its head.

V.

The Time Has Come to Repudiate Raich’s

“Rational Basis” Gloss.

“Until this Court replaces its existing Commerce

Clause jurisprudence with a standard more consistent

with the original understanding” Congress will

continue to move the goal posts and claim even

greater power to intrude on core “state police powers

under the guise of regulating commerce.” Morrison,

529 U.S. at 627 (Thomas, J., concurring); see, e.g., Tex.

Top Cop Shop, Inc. v. Garland, 758 F. Supp. 3d 607

(E.D. Tex. 2024) (Corporate Transparency Act). The

time has come for this Court to do so.

At a minimum, this Court should not allow Raich’s

atextual and ahistorical enlargement of Congress’s

Commerce Clause power to authorize it to regulate

intrastate conduct with any theoretically conceivable

relationship to interstate commerce to remain on the

books. As Petitioners explain, Raich is an outlier

decision that was poorly reasoned, see Pet. 21–26, is

neigh impossible to square with this Court’s

precedent, see Pet. 26–33, and has not stood the test

of time, see Pet. 36–40.

21

Even on its own terms, Raich’s continuing vitality

is open to question. Subsequent developments “have

greatly undermined its reasoning.” Standing Akimbo,

LLC v. United States, 141 S. Ct. 2236, 2236 (2021)

(Thomas, J., statement respecting denial of

certiorari). Here, Petitioners allege that none of the

predicate

assumptions

Raich

relied

on—a

comprehensive federal scheme banning all production

and sale of marijuana, see 545 U.S. at 13, 19–22, 28,13

a risk that allowing intrastate production and

possession

would

increase

illicit

interstate

14

commerce, see id. at 12, 20 & n.20, and this Court’s

conclusion that marijuana is fungible,15 see id. at 18–

20—hold true today. For this reason alone, “[a]

prohibition on intrastate use or cultivation of

marijuana may no longer be necessary or proper[.]”

Standing Akimbo, 141 S. Ct. at 2238 (Thomas, J.,

statement respecting denial of certiorari).

The Petition presents an ideal (and rare)

opportunity to begin to “temper” and “modify,” Lopez

514 U.S. at 601–02 (Thomas, J., concurring), this

Current federal policy “bears little resemblance to the

watertight nationwide prohibition” at issue in Raich. Standing

Akimbo, 141 S. Ct. at 2238 (Thomas, J., dissenting from denial

of certiorari). And as the district court found, “the Complaint has

alleged persuasive reasons for a reexamination of the way the

[CSA] regulates marijuana[.]” App. 22a.

14 See, e.g., Compl. ¶ 65 (seed-to-sale tracking “prevent[s]

leakage” “into illicit interstate commerce”); id. ¶ 74 (similar).

15 See, e.g., Compl. ¶ 22 (“each marijuana product sold under

Massachusetts’ regulations is traceable to its origin and distinct

from illicit interstate marijuana”); id. ¶ 103 (state-regulated

marijuana “is not fungible with . . . marijuana that has travelled

in illicit interstate and international commerce”).

13

22

Court’s Commerce Clause and Necessary and Proper

Clause jurisprudence to bring it closer in line with the

Constitution’s original public meaning. This Court

should take up that task.

This Court should end Raich’s “rational basis”

error by squarely overruling that aberration and

making clear that the Constitution requires more

before the federal government may intrude on the core

police powers it reserves to the States. As Petitioners

explain, see Pet. 34–35, the sky will not fall if this

Court takes that modest step. On the contrary, our

constitutional republic will be healthier for it.

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 19, 2025