June 07, 2005, 9:21 a.m.
Federalism, Up in Smoke?
The Supreme Court upholds a sweeping justification of federal power.

In 1996, California became the first of nine states to decriminalize the medical use of marijuana. Although California law allows doctors to prescribe marijuana under state law, the federal Controlled Substances Act (CSA) prohibits the use, cultivation, or possession of marijuana for any purpose. Seeking relief from a variety of painful symptoms, Angel McClary Raich challenged the federal prohibition on constitutional grounds. Among other things, Raich argued that insofar as the CSA prohibited her possession and use of marijuana pursuant to a doctor’s prescription, it exceeded the scope of federal power. Such a regulation, she argued, was not a valid exercise of the federal commerce power. (For more on her arguments, see here.)

Raich prevailed in the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court ruled against her Monday, however, and upheld federal bans of marijuana possession and cultivation for personal medicinal use. In a majority opinion authored by Justice John Paul Stevens, and joined by Justices Souter, Ginsburg, Kennedy, and Breyer, the Court held that the Constitution’s “commerce clause” authorizes federal regulation of such conduct under the Controlled Substances Act (CSA). Justice Antonin Scalia also concurred in the result. Only Justices O’Connor, Thomas, and Chief Justice Rehnquist dissented. Few expected the Court to rule differently. The question now is whether Gonzales v. Raich means the federalism doctrine of enumerated powers has gone up in smoke.

Gonzales v. Raich (previously Ashcroft v. Raich) is the latest in a long series of Supreme Court opinions interpreting the scope of the so-called commerce clause. Under Article I, section eight of the Constitution, Congress has the power to regulate “commerce . . . among the several states.” For most of the nation’s history, this was understood as a rather limited power, rarely invoked by Congress. When Congress first sought to exercise its regulatory muscle, in the late 19th and early 20th century, it faced a hostile court, skeptical that the power over interstate commerce authorized plenary authority over economic concerns.

In the 1930s, however, the Supreme Court reversed course, okaying one federal regulatory statute after another. In one infamous case, Wickard v. Filburn, the Court upheld the federal regulation of wheat production, even where the wheat was grown and consumed on a single farm. Farmer Filburn’s activity was neither “interstate” nor “commercial,” but was nonetheless subject to federal control. Allowing every individual farmer to grow their own wheat in excess of federal supply controls could disrupt federal efforts to regulate wheat prices, the Court explained. While no individual farmer could have a significant affect on wheat prices, the cumulative effect of all such farmers could have a “substantial effect” on interstate commerce, and so it is subject to the commerce clause.

Despite numerous challenges, the Court did not invalidate a single piece of federal legislation on commerce clause grounds for over 50 years. Then, in 1995 the Court found a law that exceeded the scope of federal power: the Gun-Free School Zones Act. Gun possession in or near a school was in no sense economic, a five-justice majority of the Court held in United States v. Lopez, and could not be reached under the commerce clause. A few years later, in United States v. Morrison, the same five justices invalidated portions of the Violence Against Women Act, again on the grounds that the regulated activity was not economic and could not have a “substantial effect” on interstate commerce.

After Lopez and Morrison, it seemed that further expansion of federal regulatory authority into local matters might be at an end. Even if the Court were not ready to overturn decades of decisions upholding extensive federal power, there was hope it would not allow Congress to go any farther under the pretense of regulating “commerce among the several states.” If nothing else, these decisions made clear that federal power had judicially enforceable limits. Raich now casts this conclusion in doubt.

Noting the Court’s interpretation of the Commerce Clause “has evolved over time,” Justice Stevens’ majority opinion in Raich held Congress’s effort to control drug abuse and illegal trafficking could be used to regulate conduct that has little relation to either. As in Wickard, the Court asserted that Congress may regulate “purely intrastate activity that is not itself ‘commercial’” if necessary for the regulation of interstate commodity markets. As in Wickard, the federal government can regulate the activity of one individual if, when aggregated together with all similarly situated people, that person’s activity will have a “substantial effect” on interstate commerce.

“That the regulation ensnares some purely intrastate activity” — such as the personal possession of marijuana for medical use — “is of no moment,” Stevens explained. Congress enacted a “lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession” of controlled substances, and reasonably determined that any possession or consumption of a controlled substance could undermine the entire scheme. Even personal consumption has the potential to displace demand for marijuana in the open, albeit illegal, interstate market. So, Angel Raich is no less subject to federal power than farmer Filburn. Yet if any privately produced item that can substitute for a commercially produced good is subject to federal control, then Congressional power knows few limits. Federal regulation of commercial day care services could justify regulating child care in the home; regulation of restaurants could justify regulating domestic food preparation; and so on.

In prior cases, the Court had only ever applied such reasoning to activities one could consider “economic.” Justice Stevens’ majority opinion accepted this rule, but adopted what Justice O’Connor termed a “breathtaking” definition of the term. The CSA regulates “quintessentially economic” activities, Stevens wrote, specifically “the production, distribution, and consumption of commodities.” This is the definition of “economics” Stevens found in the 1966 Webster’s Third New International Dictionary. Most other dictionaries, however, do not offer nearly so expansive a definition, Justice Thomas observed in dissent. But a more constrained — and common-sensical — definition of “economic” would have constrained the scope of federal power.

That Justices Stevens, Souter, Ginsburg, and Breyer — the Court’s four liberals — would be so deferential to congressional power is not surprising. All four have made clear they have little interest in constraining legislative power on federalism grounds. More disturbing is Justice Kennedy’s decision to go along for the ride without explanation. Perhaps, some surmise, this is due to his visceral hostility to drugs. Yet whatever the reason, he was not the only right-leaning justice to give a green light to the continued extension of federal power.

Concurring in the result Justice Scalia offered a “more nuanced” if only marginally less expansive, opinion. In Scalia’s view, the federal regulation of medical marijuana was justified under the “necessary and proper clause,” as such regulation is not itself the regulation of commerce. Rather, Scalia explained, Congress has the power to regulate “intrastate activities that do not themselves substantially effect interstate commerce,” if “necessary to make a regulation of interstate commerce effective.” Because marijuana is a “fungible commodity,” Congress power to control interstate drug trafficking provides sufficient basis to criminalize smoking home-grown weed pursuant to a doctor’s prescription. Indeed, Scalia concurred with the majority’s troubling conclusion that any noneconomic intrastate activity is fair game, so long as such activities are regulated “in connection with a more comprehensive scheme of regulation.”

Under Raich, it is easier for Congress completely to displace state power with a comprehensive and intrusive regulatory regime than with narrow legislation focused on a discrete and limited issue of particular federal concern. As Justice O’Connor noted in her dissent, the Court “suggests that the federal regulation of local activity is immune to commerce clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal.” So long as Congress could rationally conclude that the control of a noncommercial, intrastate activity is “essential” to a broader regulatory scheme, a majority of the Court appears ready to go along. This not only gives Congress the incentive to adopt more ambitious legislation, it also severely constrains any meaningful judicial check on federal power under the commerce clause.

After Lopez and Morrison, lower federal courts were exceedingly reluctant to invalidate federal statutes or regulations on commerce-clause grounds. The decisions had little bite below, as court after court upheld even the most expansive federal laws and their most intrusive applications. Courts stretched to ensure laws covering petty arsons and other local crimes would pass muster. So even if Raich does not auger more relaxed scrutiny of federal enactments, it will discourage lower courts from questioning federal actions on commerce clause or other textual grounds. The Founders sought to create a government of limited and enumerated powers. After Raich, there is reason to fear that we can’t rely on courts to enforce these constitutional limits.

— Contributing Editor Jonathan H. Adler is associate professor and associate director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.