What ever happened to federalism?

In Gonzales v. Raich, the Supreme Court upheld a federal law that prohibited--among other things--the possession and use of marijuana for medical purposes. (1) In doing so, the Court strangled in its infancy the so-called federalism revolution that began a mere 10 years ago with the United States v. Lopez decision (2) and which was reinforced five years later in United States v. Morrison. (3)

In Lopez, the Supreme Court struck down the federal Gun-Free School Zones Act, finding that possessing a gun near a school was not a form of interstate commerce and did not justify federal intervention under the Commerce Clause. In Morrison, the Court ruled the same with respect to the Violence Against Women Act.

To be fair to the Court, while its decision in Raich is flatly inconsistent with Lopez and Morrison, the justices themselves largely adhered to the same positions they took in those cases. Only Justices Anthony Kennedy (silently) and Antonin Scalia voted differently from the way they had in Lopez and Morrison. The 5-1-3 Raich decision had the moderates (or what passes for "liberals" on the current Court) upholding the statute, Scalia concurring, and the other conservatives--Justices Sandra Day O'Connor and Clarence Thomas, and Chief Justice William Rehnquist--dissenting.

In Raich, federal agents seized six marijuana plants that were being grown for medical use, which is legal under California law. The agents acted under the federal Controlled Substances Act (CSA), which prohibits all possession of marijuana, except for federally approved research. (4) The marijuana growers sued for injunctive and declaratory relief, citing several constitutional violations and claiming that Congress had exceeded its power under the Commerce Clause when it enacted the CSA. The lower court dismissed the case, but the Ninth Circuit reversed and ordered the lower court to enter a preliminary injunction, finding that the appellants' activities--cultivating and using marijuana for medical purposes on the advice of a physician--fell outside the scope of the Commerce Clause. (5)

The Supreme Court reversed. In an opinion by Justice John Paul Stevens, the Court held that "Congress's Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." (6) The Court remanded the other constitutional claims to the appeals court.

The upshot: For the time being, states may continue allowing medical marijuana use. Even if the Ninth Circuit rules against the respondents on the other constitutional questions, nothing in the Supreme Court's opinion requires states to repeal their own drug laws. The decision does allow federal authorities to enforce the CSA in spite of contrary state laws, but it's unlikely the federal government will aggressively prosecute violators.

The issue before the Court was whether the CSA's application to the respondents fell within Congress's power to regulate activities that have a "substantial economic effect on interstate commerce." (7) The Court held that it did, relying primarily on the 1942 case Wickard v. Filburn, (8) which had been cited with approval in Lopez. Wickard was a wheat farmer, subject to quotas under the Depression-era Agricultural Adjustment Act (AAA), which aimed to stabilize wheat prices by restricting how much each farmer could grow. Wickard exceeded the quotas but argued that since he was using the excess wheat himself, not selling it, his action was not "commerce" so the AAA could not be constitutionally applied to him.

The Wickard Court disagreed, noting that by consuming his excess wheat, Wickard was not buying wheat or, more zzz accurately, was selling more than he would have if his own consumption was taken into account. If the actions of all of the Wickards in the country were aggregated, the net effect would be to "undercut the regulation of the interstate market in that commodity." (9)

The Raich Court claimed that the marijuana growers were just like Wickard in that sense.

   In Wickard, we had no difficulty concluding
   that Congress had a rational basis for
   believing that, when viewed in the aggregate,
   leaving home-consumed wheat outside
   the regulatory scheme would have a
   substantial influence on price and market
   conditions. Here too, Congress had a rational
   basis for concluding that leaving
   home-consumed marijuana outside federal
   control would similarly affect price
   and market conditions. (10)

The analogy may look good at first blush, but it does not stand up to careful analysis. Wickard was in the business of selling wheat, and his unauthorized wheat consumption really did frustrate the federal government's scheme, albeit in a small way. The Raich respondents' actions do not. In fact, by growing and using their own marijuana, they are actually advancing the federal scheme by not participating in the illegal interstate drug trade. Even if we aggregate the marijuana growing/consumption activity of all medical marijuana users, we see only a diminution of demand for the illegal interstate product.

Well, yes, the Court might concede, but Congress's real concern is "the likelihood that the high demand in the interstate market will draw such marijuana into that market." (11) That is a reasonable concern. But possession of drugs with intent to distribute is a separate crime--one there is no evidence the Raich respondents were planning to commit.

Under current law, federal authorities can prosecute someone who grows or possesses large amounts of marijuana for "medical use" on the grounds that the excessive quantities (more than the person can use) establish an intent to distribute. (12) But small amounts of marijuana for personal use do not frustrate, or realistically threaten to frustrate, the legitimate federal enforcement scheme. (13) What the Raich respondents did is simply not "commerce," nor does it affect interstate commerce, in the sense that term was used in Lopez and Morrison. (14)

But the Court distinguished this case from Lopez and Morrison, saying those cases involved freestanding statutes that regulated only noncommercial activity, whereas in Raich, "the respondents ask [the Court] to excise individual applications of a concededly valid statutory scheme." (15) But if portions of the statute are unconstitutional, then they should be excised if it can be done without frustrating the overall intent.

In his opinion (concurring only in the judgment), Scalia set forth a slightly different rationale for upholding the government's position. He conceded that the activities in question were intrastate in nature and did not meaningfully affect interstate commerce, but he said this was irrelevant:

   [A]s this Court has [long] acknowledged
   ..., Congress's regulatory authority over intrastate
   activities that are not themselves
   part of interstate commerce (including activities
   that have a substantial effect on interstate
   commerce) derives from the Necessary
   and Proper Clause.... Where
   necessary to make a regulation of interstate
   commerce effective, Congress may regulate
   even those intrastate activities that do not
   themselves substantially affect commerce. (16))

So, since everyone agrees that the CSA is an appropriate use of federal power, the fact that certain provisions of it prohibit activities that don't "substantially affect" interstate commerce doesn't matter. By not claiming that the activities in this case substantially affect interstate commerce when they obviously do not, Scalia has avoided the illogic of the majority opinion. But, more than the majority, he endorses Congress's acting broadly to assert control over activities that it could not reach if it acted narrowly.

Objection to such reasoning is a major part of O'Connor's dissent. The whole point of Lopez and Morrison was to develop a "non-infinity" principle, since any activity may in some remote way be said to affect interstate commerce. For example, if I write a note reminding my daughter to take out the garbage, the pencil or the notepad may have traveled from another state, so my using them has an "effect" on interstate commerce. (Not to mention the effect of the garbage, assuming--somewhat dubiously--that she does what I say.) The non-infinity principle narrows this focus to a reason-able one.

But O'Connor said the majority holding undercuts that principle:

   Today's decision 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. In my
   view, allowing Congress to set the
   terms of the constitutional debate
   in this way, that is, by packaging
   regulation of local activity
   in broader schemes, is tantamount
   to removing meaningful limits
   on the Commerce Clause.
   ... If the Court is right, then Lopez
   stands for nothing more than a
   drafting guide.... (17)

O'Connor suggests that medical uses of marijuana are different from other uses of the drug and that allowing California law to stand is consistent with the "federal laboratory" approach extolled by states' rights advocates. She argues that medical marijuana has only a de minimis effect on the interstate market, unlike the activities of wheat growers like Wickard. (18) Given this, it follows that regulating medical marijuana use is not "necessary" to upholding federal law.

Possession or production of small quantities of drugs, without proof of an interstate connection, is not interstate commerce--period. Whether or not the marijuana is for medical use is irrelevant. Of course, the possession would still be subject to state prohibition, including any medical-use exception. And possessing large quantities may be--and often is--prosecuted as possession with intent to distribute, with intent proven simply by showing that the quantity exceeds a reasonable amount for personal use. This is commerce.

Technically, this approach would apply equally to all drugs because Lopez says that Congress's jurisdiction under the Commerce Clause is limited to activities that substantially affect interstate commerce. In reality, since opium and cocaine are not grown locally, possessing these drugs and their derivatives would necessarily involve interstate (or foreign) commerce.

This approach is informed by the nature of marijuana itself. Certainly, the government can prohibit even local possession of machine guns and hand grenades, because someone's owning those weapons truly would frustrate the government's scheme--in that case, its ability to protect the public from dangerous articles. But marijuana poses no such threat.

I was an assistant U.S. attorney in Washington, D.C., with jurisdiction in both federal and local courts, and we never prosecuted anyone for drug possession in federal court. That was reserved for distribution, or possession with intent to distribute. Of course, the federal government can and does prosecute large growing operations, even if they claim to be for "medical purposes." (19)

Granted, someone could raise problems for the government by claiming that their relatively large quantity of drugs was for personal use over an extended period of time. The government could solve this by setting specific limits, through regulations, on just how much marijuana someone could possess before intent to distribute was presumed.

This approach does raise a tricky question: whether distribution without sale could be prohibited, as it is now. I think not--no commerce. But as noted, it is a valid rebuttable presumption that possession of large amounts of drugs is for the purpose of sale and not an eleemosynary activity.

In short, the government's claimed interest in this case is specious. If the Supreme Court were true to the principles of Lopez and Morrison, it would have upheld the Ninth Circuit unanimously, but not even the dissenters were willing to stick to their federalism principles to that extent.

Notes

(1.) 125 S.Ct. 2195 (2005).

(2.) 514 U.S. 549 (1995).

(3.) 529 U.S. 598 (2000).

(4.) 21 U.S.C. [section] 801 (2000).

(5.) Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003).

(6.) Raich, 125 S. Ct. 2195, 2196.

(7.) Id. at 2206.

(8.) 317 U.S. 111 (1942).

(9.) Raich, 125 S. Ct. 2195, 2206 (citing Wickard, 317 U.S. 111).

(10.) Id. at 2207.

(ll.) Id.

(12.) The presumption of intent from quantity alone is well accepted, as Justice Clarence Thomas recently recognized: "Under [statutes prohibiting possession of drugs with intent to distribute], the intent to distribute is effectively satisfied by possession of some threshold amount of drugs." Virginia v. Black, 538 U.S. 343, 398 (2003) (Thomas, J., dissenting).

(13.) This is the position of Thomas's dissent, at least as to medical marijuana.

(14.) See, e.g., Craig M. Bradley, Federalism and the Federal Criminal Law, 55 HASTINGS L. J. 573 (2004).

(15.) Raich, 125 S. Ct. 2195, 2197.

(16.) Id. at 2216 (Scalia, J., concurring). The majority also points to the Necessary and Proper Clause to justify Congress's "regulation of some purely intrastate activity" as part of a comprehensive scheme to regulate interstate commerce. (Id. at 2209.)

(17.) Id. at 2222 (O'Connor, J., dissenting).

(18.) Id. at 2220-29.

(19.) Dean A. Murphy, Officials Say Drug Raids Found Clubs Were a Front, N.Y. TIMES, June 24, 2005, [section] 1, at 1.

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at the Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].