Supreme Court Upholds Broad Congressional Power in Marijuana Case

In a case with implications for congressional power in widely ranging areas, the Supreme Court held by a 6-3 vote that Congress has the power under the Commerce Clause to criminalize the noncommercial use of medical marijuana under the federal Controlled Substances Act (“CSA”).

The case is Gonzales v. Raich, No. 03-1454, ---S.Ct.---, 2005 WL 1321358 (June 6, 2005).  For now, the majority firmly upheld the Commerce Clause jurisprudence that has, for the most part, prevailed since 1937.  But the split among the conservatives indicates that the battle may not be over if the composition of the Court changes.

Justice Stevens wrote the majority opinion, in which Justice Kennedy joined the moderates, with Justice Scalia in concurrence.  Justices O’Connor and Thomas and Chief Justice Rehnquist dissented.  As the alignment of the justices generally showed, the Court viewed the case as having more to do with Congress’s power vis a vis the states than with control of drugs or marijuana.  Although the federal government was on conservative side in this case and the “states’ rights” position was a liberal one, in most federalism cases the positions are reversed.  The Court’s endorsement of broad federal power will be important – though perhaps not decisive – in ongoing challenges under the Endangered Species Act, the Americans with Disabilities Act, the Freedom of Access to Clinics Act, and the interplay between the CSA and Oregon’s Death with Dignity Act, among others.

Majority Opinion

After the Court struck down the Violence Against Women Act and the Drug Free School Zones Act in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), respectively, some had feared a resurgence of the Court’s pre-1937 practice of reading Congress’s commerce powers narrowly.  In Raich, however, the Court rejected a “myopic focus” on Lopez and Morrison outside of the “larger context of modern-era Commerce Clause jurisprudence.” 

The Court found that noncommercial medical marijuana is indistinguishable from the wheat in Wickard v. Filburn, 317 U.S. 111 (1942), which upheld Congress’s authority to restrict home-grown wheat for personal consumption as part of a national scheme of controls on agricultural production.  The Court had previously cast some doubt on Wickard, characterizing it as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," Lopez, 514 U.S. at 560.  But in Raich, the Court held that Wickard “firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.”  The Court noted that, unlike in Lopez and Morrison, the plaintiffs challenged only a particular application of the CSA, not the entire statute.  The Court refused “to excise individual applications of a concededly valid statutory scheme.”

The majority also firmly endorsed the deference to Congress that has prevailed, by and large, since the Court abandoned strict scrutiny of economic legislation in 1937.  “We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding’” (citations omitted).  Nor was it relevant that the CSA lacked legislative findings about the specific impact of medical marijuana on the interstate market: “[W]e have never required Congress to make particularized findings in order to legislate.”

Scalia’s Concurrence

Justice Scalia wrote separately but did not directly attack the majority’s reasoning, explaining that his approach is, “if not inconsistent with that of the Court, at least more nuanced.”  He emphasized the “expansive scope of Congress’s authority” to facilitate or restrict interstate commerce, reaching even, when necessary, to “those intrastate activities that do not themselves substantially affect interstate commerce.”  He relied on the 1937 case of NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which began the modern approach to the Commerce Clause, and also listed with approval cases upholding regulation of racial discrimination in restaurants and hotels, wage and hour laws, surface coal mining, intrastate price-fixing, the activities of a local grain exchange, and intrastate transactions at a stockyard. 

Scalia noted, however, that these broad extensions of the power to regulate interstate commerce must comply with the Necessary and Proper Clause and must be “appropriate” and “plainly adapted” to exercise of that power.  He hinted that this might not be the case if a statute, unlike the CSA, violates state sovereignty.

O’Connor’s Dissent

Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented.  She emphasized the need “to protect historic spheres of state sovereignty” and “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’”(citation omitted). 

Perhaps the most striking aspect of her dissent, however, was the adversarial approach it took towards Congress.  She criticized the majority for giving “Congress a perverse incentive to legislate broadly,” for endorsing “evasive or overbroad legislative strategies,” and for “allowing Congress to set the terms of the constitutional debate … [and] to regulate intrastate activity without any check.”  She recognized that it was “plausible” that California’s medical marijuana law could undercut the CSA’s regulation of the interstate marijuana market.  But she insisted that the Court should not defer to Congress’s legislative findings “without any proof….  If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers.”

The majority countered that the dissenters’ approach “would impose a new and heightened burden on Congress … that legislation must contain detailed findings proving that each activity regulated within a comprehensive statute is essential to the statutory scheme.”

Thomas’s Dissent

Justice Thomas repeated his previous position that the power to regulate commerce includes only trade and not “productive activities like manufacturing and agriculture…. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana….  If the activity is purely intrastate, then it may not be regulated under the Commerce Clause.”   The majority noted that under Thomas’s approach, “Congress would be equally powerless to regulate, let alone prohibit,… marijuana for recreational purposes.”

Implications

Despite the split decision, in some ways this was an easy case for the Court that may not say much about the scope of federal power in other contexts.  Not only was the case almost directly on point with Wickard; the case also directly involved regulation of a product sold in interstate commerce.   The Court noted that, unlike the statutes struck down in Lopez and Morrison, “the activities regulated by the CSA are quintessentially economic.  ‘Economics’ refers to ‘the production, distribution, and consumption of commodities.’”

However, when Congress acts to protect individual rights as under the ADA or the Civil Rights Act of 1964, it is not directly regulating commodities.  The link to commerce gets even less direct when these laws are applied in noncommercial contexts, like government programs.  Justice Scalia’s hint about statutes restricting state sovereignty may have been intended for just such cases.  Similarly, the Endangered Species Act does not regulate commercial products or economic matters, and the link to the commerce that spurs the land use development that endangers the environment is not as direct as in Raich or Wickard. 

Furthermore, the fact that three conservative justices were willing to strike down Congress’s ability to regulate medical marijuana is a warning sign to Congress that not all conservatives are alike.  Packing the Supreme Court and the lower courts with judges who are hostile to federal power may endanger even conservative legislation in areas like drug use, child pornography laws, and land use decisions restricting religious activities. 

As the Senate considers the nomination of California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit, it may want to take that possibility into consideration.  It is amazing timing that, two days before her nomination is scheduled for a vote, the Supreme Court has issued an opinion going to the heart of the 1937 “revolution” that Brown has criticized.  Senators should think twice about whether they want to side with the dissenters from that revolution.