Can Congress Regulate Medical Marijuana Under the Commerce Clause?

Gonzales v. Raich

(I know this is longer than usual, but I am particularly interested because of long debates my class had about Wickard v. Filburn)

The federal Controlled Substances Act places drugs into 5 classes, the first of which contains drugs that have no accepted medical purpose, and includes marijuana. This law was enacted under Congress’ enumerated power to control interstate commerce, in that the objective of the law was to control the commerce of drugs. California’s Compassionate Use Act allowed for those patients with severe illnesses, and prescriptions from their doctors, to be exempted from prosecution for drug possession. In this case, the Court considers whether the CSA is valid under the Constitution. It should also be noted that for the sake of argument here, the plants in question were at not time sold; the person growing them gave them away to people who qualified, so as to avoid economic entanglement.

The appellate court found that personal use of marijuana was distinct from the larger economic trade in marijuana, and thus, to the extent it was “not intended for, nor [did] it enter, the stream of commerce,” it was not subject to Congress’ regulation under the Commerce Clause. The two recent cases that the courts use as precedents here are U.S. v. Lopez, which found that the Gun-Free School Zones Act was unconstitutional because it did not apply to interstate economic activity in any way; and U.S. v. Morrison, the Court found that the Violence Against Women Act was unconstitutional because the link between gender motivated violence and interstate commerce was too tenuous. The Court also addressed an old case, Wickard v. Filburn, one of the most derided decisions the Court ever turned out. In this case, the Court upheld a law capping the amount of wheat a farmer could grow, even where the excess was purportedly used for personal consumption (the law did however allow for a substantial amount to be grown in excess of the cap for personal consumption). In Wickard the Court found that Congress had the authority “to regulate purely local activities that are part of an eco­nomic “class of activities” that have a substantial effect on interstate commerce.”

In response to the arguments that this case differs from Wickard because (1) the law in Wickard exempted small farming operations; (2) Wickard involved “quintessential economic activity;” and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices, the majority states that these differences do not negate the force that case carries as a precedent regarding Congress’ power.

Here the majority argues that if this aspect of marijuana cultivation is beyond Congress’ control, so is any recreational use and that even if it is true that marijuana has a legitimate medical use, the CSA would still legitimately impose controls on it. The majority also rejects the assertion that California isolated this particular use of marijuana and chose to police it itself, because it is “dubious” to state that this use of marijuana “is hermetically sealed off from the larger interstate marijuana market.” The majority does suggest that an argument based on Due Process could succeed, but do not address it because the lower court did not. Ultimately the Court recommends for those patients that require marijuana for medical purposes to employ the democratic process to have marijuana reclassified under the CSA.

Justice Scalia’s concurring opinion, among other things, argues that the part of the Constitution empowering Congress to enact those laws which are “necessary and proper” to carry out its enumerated powers “empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation.”

The dissent (by Justice O’Connor, and for Chief Justice Rehnquist and Justice Thomas) argues “medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently.” The dissent goes on to point out, merely in order to distinguish Wickard as a precedent, that the exemptions in the agricultural act in Wickard meant that Congress was not regulating modest cultivations such as the few individual plants that medical users grow, comparing this cultivation to “the home cook’s herb garden.” The dissent also argues that in that case Congress had made its argument that the activity was economically related, whereas in this case there is only the assertion that the activity is so related, and that as long as an assertion is all that is necessary, “the Necessary and Proper Clause will always be a back door for unconstitutional federal regula­tion.”

Justice Thomas’ dissent additionally argues that “even assuming the CSA’s ban on locally cultivated and consumed marijuana is ‘necessary,’ that does not mean it is also ‘proper,’” and that whatever means Congress decides to use in its regulation must be within the spirit of the Constitution. Justice Thomas also argues, as does Justice O’Connor, that this reading of the Commerce Clause, in relation to Lopez, would allow Congress to regulate through broadly packaged legislation targeting legitimate economic concerns, in ways that it could not regulate individually.