Koch-Backed Americans for Prosperity Foundation Urges Supreme Court to Strike Down Federal Marijuana Prohibition

In a detailed amicus brief filed this week, the Americans for Prosperity Foundation told the Court that the Controlled Substances Act overreaches when applied to licensed marijuana businesses operating solely inside Massachusetts, saying the federal government has crossed a constitutional line by treating local commerce as if it were federal. The group frames the dispute as a test of core federalism principles, not a debate over marijuana policy. AFPF says the Constitution was designed to give states—not the federal government—the “general power of governing,” and that Congress can only legislate where a specific grant of authority exists. The group argues that intrastate marijuana activity, tracked and regulated from seed to sale under state law, falls squarely within state police powers and has no proven connection to interstate commerce.

The filing sharply criticizes the Supreme Court’s 2005 decision in Gonzales v. Raich, calling it an outlier that “tramples on States’ core power” to regulate local conduct. AFPF says Raich transformed the Commerce Clause by allowing Congress to reach activity with no demonstrated impact on interstate trade, relying instead on a “rational basis” theory that the brief describes as unbounded, ahistorical, and incompatible with the Constitution’s original meaning.

According to AFPF, the Massachusetts businesses challenging federal enforcement—Canna Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings—are ideal petitioners because their operations are entirely intrastate and tightly regulated, eliminating the assumptions that underpinned Raich two decades ago. The brief notes that state systems now include distinct product tracking, which undercuts the idea that licensed marijuana is fungible with illicit cannabis moving across state lines.

AFPF urges the justices to take the case and formally discard Raich, saying the decision has distorted Commerce Clause doctrine and invited expansive federal control over matters the framers intentionally left to the states. The brief argues that restoring the Constitution’s limits would strengthen the country’s system of dual sovereignty rather than weaken federal authority.

The petition itself was filed last month by Boies Schiller Flexner LLP, and the Justice Department recently declined to weigh in on whether the Court should hear the case, leaving the question entirely with the justices.