The Supreme Court Upholds Congressional Power to Override California's Medical Marijuana Law: Judicial Federalism Gets Really Interesting

By MICHAEL C. DORF

Wednesday, Jun. 08, 2005

In 1996, California approved a ballot initiative eliminating criminal penalties for the private cultivation and use of marijuana for medical purposes. But the federal Controlled Substances Act makes these activities illegal throughout the United States--with no exceptions. And under the Supremacy Clause of the Constitution, federal law trumps state law, provided that the federal law in question is itself constitutionally valid.

Is the Controlled Substances Act valid? Earlier this week, the U.S. Supreme Court addressed this question in Gonzales v. Raich. The Court ruled 6-3 that it is. Accordingly, the federal Act can be applied to prohibit the private cultivation and use of marijuana for medical purposes, despite California law purporting to shelter such conduct.

Court-watchers were keenly interested in Raich because the case had the potential to scramble political and jurisprudential sensibilities. And for two Justices at least, it did just that.

The six Justice-majority in Raich included the four most liberal members of the Court--Justices Stevens, Souter, Ginsburg, and Breyer. All four have consistently dissented from recent decisions narrowing the scope of Congressional power. For these Justices, the principle of broad federal power prevailed against any countervailing sympathy they may have felt for sick people unfairly ensnared in the war on drugs. Writing for the majority, Justice Stevens said that complaints should be addressed to the political process, not the courts.

The three dissenters--Chief Justice Rehnquist, Justice O'Connor and Justice Thomas--also put their federalism commitments first. But for these conservatives, those commitments cut against sustaining Congressional power--because, for them, federalism allows a large area in which the states can act unimpeded by federal power. Thus, although one would be hard-pressed to label any of these three "soft on drugs," they all nonetheless thought that the legal status of medical marijuana was an issue constitutionally reserved to the states.

The key to the decision, therefore, was that two of the Justices who have lately voted to construe Congressional power under the Commerce Clause relatively narrowly--Scalia and Kennedy--jumped ship and joined the liberals. Despite a jurisprudential commitment to states' rights, these two Justices thought that the federal government had ample authority to regulate all marijuana use, notwithstanding any exceptions California or other states would have permitted.

Did Scalia and Kennedy vote as they did simply because they oppose marijuana legalization? Did they, in other words, cast jurisprudential principle aside to impose their subjective views of drug use?

The answer is no, although the reason will take some explaining.

The Emergence of the "Economic Activity" Category

To understand what was at issue in Raich, it will help to understand the state of Commerce Clause jurisprudence before the Rehnquist Court set about rewriting it a decade ago.

When I started teaching constitutional law in 1993, I used to play a version of "Six Degrees of Separation" with my students. I would ask them to name an activity that the federal government had no apparent authority to regulate, and I would demonstrate--in six steps or fewer--how the Supreme Court's precedents interpreting the Commerce Clause, authorized regulation.

What about a federal law barring whistling in the shower? No problem. (1) People who whistle in the shower don't concentrate on cleaning themselves; (2) therefore, they take longer showers; (3) therefore, they use more hot water; (4) therefore, they use more energy to heat the water; (5) therefore, they increase demand for energy in the interstate market; and (6) thus, Congress can regulate whistling in the shower as a means of regulating the interstate market for energy. Take that, Kevin Bacon!

The game became somewhat less fun in 1995, when the Supreme Court decided United States v. Lopez. By a 5-4 margin, in that case the Court said there is a logical stopping point to this sort of ankle-bone-connected-to-the-knee-bone account of the Commerce Clause. In Lopez, and again in the 2000 case of United States v. Morrison (decided by the same 5-4 margin), the Justices said that Congress has very little power to regulate purely intrastate activities that are not, in their nature, "economic."

The supposedly non-economic issues in Lopez and Morrison were, respectively, possession of a firearm near a schoolyard, and private gender-motivated violence.

But even as it drew a line in the sand in Lopez and Morrison, the five-Justice majority reaffirmed what had, until that point, been the most far-reaching application of Congressional power to regulate interstate commerce. In the 1942 case of Wickard v. Filburn, the Court upheld a federal agricultural quota even as applied to a farmer who, in addition to cultivating eleven acres for commercial purposes, planted an additional twelve acres for what was described as home consumption.

The Lopez Court recognized that the Filburn case stood at the outer limit of Congressional power, but thought--or at least said--that it was just inside that limit. Growing a commodity like wheat, even if it is consumed before ever entering the market, was economic activity, whereas possessing a gun or committing gender-motivated violence, was not.

Is Marijuana Just Like Wheat?

In some sense, Raich was--or should have been--an extraordinarily easy case. If the government can regulate the intrastate cultivation of wheat for home consumption, as the Court said it can in Filburn, then surely it can likewise regulate the intrastate cultivation of marijuana for home consumption.

So said the majority at any rate, and the fact that Filburn was reaffirmed in Lopez and Morrison provides the best explanation for the votes of Justices Scalia and Kennedy in Raich.

But now we have a different mystery: How could Chief Justice Rehnquist, who wrote the majority opinions in both Lopez and Morrison, and Justice O'Connor, who joined those opinions, think that the federal government has less power to regulate marijuana than to regulate wheat? (We need not ask this question of Justice Thomas, who has consistently expressed a far narrower view of Congressional power under the Commerce Clause than any other Justice.)

The answer is that the dissenters thought the marijuana in Raich was unlike the wheat in Filburn in two key respects. First, the law at issue in Filburn already contained an exemption for very small plots of land, such as a vegetable garden.

As University of Minnesota law professor Jim Chen explained in a chapter of my book Constitutional Law Stories, to consume the wheat that farmer Filburn's excess acreage produced would have required Filburn and his family to eat forty-four one-pound loaves of bread every day! Clearly, the excess wheat was intended to be sold on the market, either directly, or as the milk, eggs or meat resulting from its consumption by Filburn's animals. By contrast, the marijuana at issue in Raich really was a personal consumption quantity.

Second, the dissenters noted that in Filburn a stipulated record revealed the workings of the interstate wheat market in a way that nothing in the Raich record supported for the market in marijuana. Accordingly, the Raich dissenters were unprepared to assume--as the majority was--that marijuana grown for personal medical use could be easily diverted to the general market.

The Raich majority gave short shrift to both of these distinctions. It's true, Justice Stevens acknowledged, that Congress had exempted vegetable-garden-sized plots from wheat quotas, but nothing in the language or overall reasoning of Filburn indicated that it was constitutionally required to do so. And as for the interchangeability of personally grown medical marijuana and commercially grown recreational marijuana, the majority thought this was visible "to the naked eye," rendering evidence of interchangeability wholly superfluous.

The Importance of a Comprehensive Regulatory Scheme

If the dissenters had difficulty distinguishing the Filburn case, the majority in Raich had difficulty distinguishing Lopez. Why is possession of marijuana more "economic" than the possession of a firearm near a schoolyard?

The majority answered that question indirectly. The key is that the Controlled Substances Act forbids even intrastate cultivation and home consumption of marijuana, as part of a comprehensive scheme regulating marijuana and other drugs.

Although the majority opinion of Justice Stevens thought this fact simply underscored the economic nature of marijuana cultivation and consumption, Justice Scalia, who wrote a separate opinion concurring in the result, gave what is probably a better explanation.

In addition to possessing the power to regulate interstate commerce, Congress has the power "To make all Laws which shall be necessary and proper for carrying" out the Commerce Clause power, and the other enumerated powers. Where Congress adopts a comprehensive scheme for regulating some activity that is undeniably a matter of interstate commerce, the Necessary and Proper Clause authorizes Congress to regulate purely intrastate non-economic activity if regulation of that purely intrastate non-economic activity is necessary to achieve the aims of the comprehensive regulation of interstate commerce.

The Controlled Substances Act at issue in Raich was such a comprehensive scheme. The regulation of guns near schoolyards in Lopez was not.

The dissenters thought that such a rule would give Congress a perverse incentive: If Congress wants to get at some intrastate non-economic activity, all it has to do is embed the relevant law in some larger comprehensive law. Thus, according to the dissenters, the loophole for a comprehensive regulatory scheme would encourage the federal government to regulate more, not less activity--leaving less, not more autonomy for the states.

The majority, however, thought this fear unfounded. Justice Stevens observed that there are political checks against Congress lightly adopting far-reaching legislation simply to immunize some relatively narrow law from constitutional challenge. Justice Scalia added that such ploys, if attempted, would be transparent.

The Future of Federalism

Its immediate significance for Californians and others aside, perhaps the most interesting aspect of the Raich decision is what it portends for future litigation concerning the limits of federal power.

With one or more retirements a real possibility in the near future, we can expect President Bush to add Justices to the Lopez/Morrison majority. But cases like Raich show that this majority is hardly monolithic. Only Justice Thomas wants to scale back the scope of federal power radically. The remaining four state-friendly Justices split evenly in Raich.

Accordingly, even solidification of the Rehnquist Court vision of states' rights on a post-Rehnquist Court will not mean the end of fighting over the line between state and federal authority. And that is entirely appropriate for a Constitution that was born out of a still-unresolved struggle between Federalists and Anti-Federalists.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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