June 2005 -- In the medical-marijuana case Gonzales v. Raich, the Supreme Court ruled (on June 6, 2005) six to three that federal laws criminalizing drug possession applied even to persons using homegrown marijuana, or cannabis, for medicinal purposes under sanction of state law. Although the case may seem to involve issues of personal liberty, it really involved a question about federal power—the scope of Congress’s power under the Interstate Commerce Clause of the U.S. Constitution. The six-justice majority decided, in effect, that Congress’s powers under this clause were almost limitless.

The two women using the medicinal marijuana, Diane Monson and Angel Raich, are California residents who suffer from a variety of serious medical conditions: Monson, forty-eight, suffers from severe back pain caused by a degenerative disease of her spine; Raich, thirty-nine, is subject to severe, debilitating pain from an inoperable brain tumor and more than a dozen other ailments. Both were treated by licensed, board-certified doctors who have concluded, after prescribing a host of conventional medicines to treat their symptoms, that marijuana is the only drug available that provides effective pain relief—in other words, that the active ingredient in cannabis provides relief that no ordinary drug can provide. Both women have been using marijuana for several years as a medication, pursuant to their doctors’ recommendation, and both rely heavily on cannabis in order to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments certainly would cause Raich excruciating pain and could well prove fatal to her.

California law—the Compassionate Use Act of 1996—authorizes limited use of marijuana for medicinal purposes. The act creates an exception from criminal prosecution for physicians who prescribe marijuana, as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician. Monson cultivates her own marijuana; however, Raich is unable to cultivate her own and so relies on two caregivers (called “John Does” in the court records) to provide her with locally grown marijuana at no charge.

Laws similar to California’s are on the books in at least eight other states (Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont, and Washington), and voters have approved similar initiatives in at least two other states (Arizona and Montana). Federal law, however, provides no exception permitting medicinal use of marijuana—the federal Controlled Substances Act (CSA) classifies cannabis as an illegal drug. (There is, however, a little-known federal experimental program, started in the early 1980s and discontinued in 1992, which legally provides marijuana cigarettes for medicinal use for a handful of persons—only seven still living.)

The six-justice majority decided, in effect, that Congress’s powers under this clause were almost limitless.
On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) barged into Monson’s home. Although the county officials concluded that her use of marijuana was entirely lawful under California law, the federal agents seized and destroyed all six of her cannabis plants. Lawyers for Monson and Raich brought suit against the U.S. attorney general (John Ashcroft, at the time the suit began, later replaced by Alberto Gonzales) seeking a court order prohibiting enforcement of the CSA against them, on the grounds that, as so enforced, the federal law would exceed Congress’s legitimate powers under the Interstate Commerce Clause, violate the Ninth and Tenth Amendments of the Constitution, and also violate their rights as protected by the Fifth Amendment Due Process Clause. The federal district court denied Monson’s and Raich’s motion for a preliminary injunction, but a majority of judges on a panel of the Court of Appeals for the Ninth Circuit reversed, ordering the district court to enter a preliminary injunction, after finding that Monson and Raich had “demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority.” The Supreme Court granted certiorari, on this sole issue, and reversed the Ninth Circuit court’s ruling, upholding CSA as a valid exercise of federal power, even under “the troubling facts” of this case.

 

In his opinion for the majority, Justice John Paul Stevens relied on previous Court decisions that had interpreted Commerce Clause powers broadly since the so-called “New Deal Revolution” of the late 1930s. In particular, he emphasized the Court’s decision in Wickard v. Filburn (1942), a case infamous to law students for illustrating how far the modern Court has permitted Congress’s Commerce Clause powers to reach. In that case, the Court held that regulations under the federal Agricultural Adjustment Act of 1938 applied even to the wheat grown by an Ohio farmer, Filburn, on his own farm, for his own family’s consumption.

Although recognizing that Filburn’s homegrown wheat was not in commerce, let alone in “commerce among the several States,” the Court nevertheless reasoned that the aggregate effect of Filburn’s actions, multiplied by all the other farmers around the country who grow wheat for their own consumption, had a “substantial economic effect” on the national market for wheat—and that was sufficient to bring his personal crop under the reach of the Interstate Commerce Clause. Stevens distinguished two recent cases in which the Court had limited the reach of federal commerce powers—United States v. Lopez (1995) and United States v. Morrison (2000)—by maintaining that the non-economic, purely local activities involved in those cases (in Lopez, possessing a gun within a certain distance of a school building, and in Morrison, sexual assault on a woman) were not connected with a “comprehensive scheme” of national regulation. He thus likened modern federal drug laws to New Deal–era federal agricultural programs: “While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.” Thus, to the majority of justices, the decision in Wickard v. Filburn was controlling, notwithstanding the Court’s so-called “New Federalism,” which in Chief Justice William Rehnquist’s opinion for the majority in Lopez had left Wickard intact.

Five other justices joined Stevens in the six-justice Raich majority. The votes of three—Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter—were not surprising, for they along with Stevens had comprised the four-justice dissenting group in Lopez and Morrison, holding, in effect, that Congress had unlimited power under the Commerce Clause. But the votes of the other two justices—Justices Anthony Kennedy and Antonin Scalia, both of whom had joined in the five-justice “conservative” majority in Lopez and Morrison—were a surprise, and a disappointment to those of us who support constitutional limits on federal government powers.

Why did these “conservative” justices join their four “liberal” colleagues in abandoning federalism in this case? Law professor Randy Barnett, who represented Raich in arguing before the Court last November, has a plausible explanation for these two justices’ votes. Kennedy’s deportment during the oral arguments supports the theory, suggested by some veteran Supreme Court reporters, that he has a “zero-tolerance” approach to drugs: in other words, in his desire to reach the result of not compromising federal anti-drug laws, Kennedy abandoned his prior principle of respecting the traditional functions of states (expressed in his Lopez and Morrison concurrences). Scalia, who did not join Stevens’s majority opinion but wrote a separate, concurring opinion relying on the Necessary and Proper Clause, reveals himself to be not only a sometimes majoritarian but also “a fair-weather federalist.” Despite Scalia’s “oft-expressed insistence that the people should act to protect their unenumerated rights in state political processes rather than in federal court,” in this case he’s willing to ignore the policy determined by the people of California and ten other states and instead have federal drug-prohibition laws trump contrary state law. Although Scalia admitted in oral argument, “‘I always used to laugh at Wickard,’” he’s now joining “in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v. Filburn because he now takes a broad view of Congress’s powers under the Necessary and Proper Clause” (Randy Barnett, “The Ninth Circuit’s Revenge,” National Review Online, June 9, 2005).
Scalia reveals himself to be “a fair-weather federalist.”
Three justices—Chief Justice Rehnquist, Justice Sandra Day O’Connor, and Justice Clarence Thomas—dissented. Rehnquist did not write an opinion; he joined most of O’Connor’s dissent, which was based on principles of federalism, including the notion that it is essential to preserve the states’ “core police powers”—their “authority to define criminal law and to protect the health, safety, and welfare of their citizens”—from encroachment by Congress. Noting that the majority identified commerce with economic activity and defined the latter with “breathtaking” breadth—virtually “any activity involving the production, distribution, and consumption of commodities”—O’Connor observed that the majority’s definition of economic activity for purposes of Commerce Clause jurisprudence “threatens to sweep all of productive human activity into federal regulatory reach.” “Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic” and thus subject to congressional power, O’Connor noted. In response to Scalia—who assumed that the CSA’s application to medicinal marijuana was “necessary” to make its regulation of interstate commerce “effective” and therefore justifiable under the Necessary and Proper Clause—she observed that “something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not self-evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation.”
Both O’Connor’s and Thomas’s dissents quoted James Madison’s observation from Federalist No. 45: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite….The powers reserved to the several States will extend to all the objects, which in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” In his separate dissent, Thomas noted the implications of this decision with respect to Madison’s observation: “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’”
 

As Barnett observes, Thomas’s dissent shows that he is the only principled originalist justice on the Court today. And, as his separate opinions in Lopez and Morrison also showed, he is the only justice on the Court who truly understands the importance of interpreting the Commerce Clause—or any other particular provision of the Constitution, such as the Necessary and Proper Clause—in the context of the Constitution as a whole. Citing Barnett’s own law-review articles discussing the original meaning of the Commerce Clause, Thomas observed that at the time of the Constitution’s adoption the term commerce was consistently used to mean trade or exchange—“not all economic or gainful activity that has some attenuated connection to trade or exchange.” Even if we ignore the original understanding, Thomas added, we ought to follow the text of the Constitution, which authorizes Congress to regulate “commerce.” Monson’s and Raich’s conduct “does not qualify under any definition of that term.” Moreover, in response to Scalia’s reliance on the Necessary and Proper Clause, Thomas explained that banning such intrastate drug activity was neither “necessary” nor “proper”: it was not sufficiently linked to the illicit interstate drug market, and a ban encroaches on the traditional police powers of the states. “The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power,” Thomas noted. “If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption,…then Congress’ Article I powers—as expanded by the Necessary and Proper Clause—have no meaningful limits.”
As Thomas concluded: “Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers….[L]ocal cultivation and consumption of marijuana is not ‘Commerce among the several States.’ U.S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.”
The federal “war on drugs” is based on an irrational fear of narcotic drugs, a hysteria that includes even so relatively harmless a drug as marijuana—a hysteria aptly caricatured in the classic cult film Reefer Madness. Of the nine members of the U.S. Supreme Court, four “liberal” justices would allow Congress to criminalize the use and possession of marijuana under all circumstances (even when homegrown for purely medicinal purposes) because they would cede to Congress unlimited powers over Americans’ lives under the rubric of the Commerce Clause. Two other “conservative” justices join the “liberals” in embracing this view of Congress’s plenary powers either because they’re enthralled by Reefer Madness hysteria or because they’re willing to shift the rationale for plenary powers from the Commerce Clause to the Necessary and Proper Clause. Three “conservative” justices aren’t willing to go so far because they recognize that the Constitution imposes limits on Congress’s powers—among them, the principle of federalism. Of those three, only one justice, Thomas, fully understands that it’s not just simply federalism that’s threatened by the Court’s decision: it’s the Constitution itself, for if one of its provisions—whether the Commerce Clause or the Interstate Commerce Clause—is interpreted as broadly as the majority justices do,  the rest of its text becomes mere “dead letter.”
 

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