June 6, 2005

Should the reason for using homegrown marijuana make a difference in Congress's Commerce Power?

I’m not at all surprised by the Supreme Court’s opinion in Gonzales v. Raich. Justice Stevens, writing for the six-member majority, relied heavily on Wickard v. Filburn, a 1942 case that upheld the regulation of a farmer’s production of wheat that he grew for use on his own farm and never intended to sell. The Wickard Court interpreted the Commerce Clause to allow regulation of the entire market on the ground that even trivial components on the market count, because, taken together, they have a substantial effect on interstate commerce. Home consumed wheat was part of the market both because it supplied the home-use needs of the farmer who would have had to buy it in the market and because the farmer might change his intentions and decide to sell it in the market.

Under the 1995 case, Lopez v. United States, which struck down the Gun-Free School Zones Act, there seemed to be some reason to think that a completely noncommercial activity might be treated differently from a farm, but Lopez did not involve regulating a market in a product, but individual gun possession.

Justice Stevens wrote
what I thought the Court would have to say: if noncommercial, homegrown marijuana were seen as beyond the Commerce Power for medicinal users, it is also beyond the Commerce Power for recreational users. The theory is the same, that noncommercial user-producers can’t be included in the Wickard-style analysis. Justice O’Connor, dissenting, joined by the Chief Justice and Justice Thomas thought the two motives for growing and using marijuana are “realistically distinct” and for that reasons susceptible to different Commerce Clause analysis.

But why? O’Connor is giving affirmative force to the state’s interest in conducting it own policy experiments. But what if there were a state interested in performing the policy experiment of authorizing the recreational use of homegrown marijuana?

UPDATE: Justice Thomas distinguished the medical use from the recreational use because the state statute, California’s Compassionate Use Act, defined and controlled who could use marijuana. This would mean that Congress began with power to reach homegrowing medicinal users of marijuana, but lost that power when California set up its regulatory scheme, because the state regulation drew a crisp, new line. Does anything else in Commerce Clause jurisprudence work that way?


Charles said...

I have not been very interested in the case itself, but more about the line of reasoning the justices take. Seems like the Federal govt regulating commerce inside a state interfers with that state's rights. How does this affect those states whose citizens decided to legalize home grown medical pot?

Ann Althouse said...

Charles: This was the subject of the case. California had tried to legalize the medicinal use. But federal law preempts state law, so unless the federal law was unconstitutional, the state law could not contradict it.

Gerry said...

I had read Thomas' dissent and thought I had agreed with his stance, but I had not read O'Connor's dissent to catch the portion about "realistically distinct." I dissent from him in that regard.

Take the concluding section III from O'Connor's dissent, make it apply to both medicinal and recreational homegrown pot, and then you would have had the decision I would have preferred.

John Stuart said...

Reading Stevens's opinion for the Court, I was struck by this passage:

"Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see Lopez, 514 U. S., at 562; Perez, 402 U. S., at 156, absent a special concern such as the protection of free speech, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664?668 (1994) (plurality opinion)."

It struck me that we are back where we were before Lopez---and that is, back to Carolene Products and footnote 4. So when we are confronted with questions of individual rights, there is a more searching inquiry (or "special concern"); but when we are concerned with the extent of federal power, we apply good ol' rational basis review.

In truth, I think Kennedy and Scalia, whether intentional or not, destroyed much of any federalist legacy Rehnquist will leave as Chief. With this retreat back to the double standard of judicial review, all that really remains of the so-called federalist revival jurisprudence are some inconsistently invoked clear statement and avoidance norms; an ill-defined and most likely symbolic anti-commandeering principle; and a strong line of sovereign immunity cases (but contra Hibbs, Lane, etc), because we all know how important it is to state autonomy and experimentation to shield state entities from money damages when they violate federal antidiscrimination norms.

Count me upset with the footnote four revival and the end of what, at least at one point, looked like the revival of some real judicially enforceable limits on national power. Or maybe I just see the sky falling; but it sure feels like it is.

imjustbigboneddammit said...

> if noncommercial, homegrown marijuana were seen as beyond the Commerce Power for medicinal users, it is also beyond the Commerce Power for recreational users.

Exactly -- just as murder, burglary, theft, etc, etc are beyond the federal Commerce power (when not committed on federal land). It's just local crime, which states have always had nearly plenary power to regulate. That would have been the right result.

I don't understand why everyone uncritically assumes that this is "commerce" at all. Seems to me the question is not whether it's interstate or intrastate commerce, but whether it's commerce at all. I know that it's economic in the sense that money changes hands, but Wickard involved actual economic activity; i.e. a guy who made his living as a farmer. Here, these people are growing a medicine, not selling it.

In any case, it's a terrible result. Stevens' offhanded remark about the democratic process is a slap in the face, too -- he knows as well as anyone that there are no elected officials with the stones to speak out against the drug war.

Charles said...

Ann, I understand the Fed law taking precedence. I suppose the part I have trouble with is why the Fed wants to regulate something inside a state that doesn't affect the nation as a whole. With the farmer who grows some extra wheat for himself, then sells it instead of using it on his farm, 1 ton wouldn't make much difference, though 1000 farmers selling 100 tons each would and might call for the Fed to regulate things, if there was a requirement to control wheat production. The individual states produce laws and citizens vote to accept or reject - labs of democracy - and eventual national policy. So why cut off the debate early? I don't much care about the medicinal marijuana, but this will leak over into things I do care about (I am sure of it).

Ann Althouse said...

Charles: Congress could easily pass a law giving the states permission to experiment in this area. The Court could only answer the question whether Congress has the power to do otherwise.

Charles said...

Obviously a good thing I am not a lawyer or law student. I don't see how Congress gives permission to states to enact laws affecting only their citizens within their state boundaries. I thought the Constitution kept the Federal government working on things between states and externally to the U.S. The Bill of Rights set out some countrywide individual items every citizen was to retain. But otherwise, the people kept powers too.

Harkonnendog said...

Ann, (or anybody)

Can you refute this, from Thomas, please?

"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers."

Also- can you explain it without making reference to precedence? I mean no precedence trumps the Constitution, right?


Ann Althouse said...

Charles: The point is that Congress has already chosen to regulate the possession of marijuana, down to the tiniests incidents of that. The Court has interpreted the Commerce Power to uphold that federal law (the Controlled Substances Act). Under the Supremacy Clause, federal law is superior to state law, so the state doesn't have the power to pass a law -- like California's Compassionate Use Act -- that undoes what Congress has done. But Congress doesn't have to regulate the possession of marijuana to the extent that it has chosen to. It can write a new law or amend the existing law to make an exception for medicinal users. That's what I was referring to. All the Court said was that Congress can do what it did. Congress isn't required to do it.

Harkkenodog: Thomas is arguing for a narrower interpretation of the Commerce Power than what the majority accepts. The majority thinks that the plaintiffs' behavior, taken in the aggregate, does have a substantial effect on interstate commerce and falls within the Commerce Power for that reason. The "substantial effects" theory has the potential to justify anything Congress wants to do, and if so, the basic concept of enumerated powers would be destroyed, as Thomas notes. The best defense of the majority position in answer to that is that regulating components of an interconnected market is something that belongs within the Commerce Power and you still have something falling outside of that power: behavior that is disconnected from an interstate market.

Harkonnendog said...

Thank you so much for answering. But I still don't understand- "that regulating components of an interconnected market is something that belongs within the Commerce Power and you still have something falling outside of that power: behavior that is disconnected from an interstate market."
There IS no interstate market, right? CA can only make it legal in CA, right? I mean are they regulating illegal markets?

Also, how does the Commerce Clause trump the 10th Amendment? "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Does the Commerce Clause spring from TWO amendments or something?
Thanx again. I'm sure this is rudimentary stuff... I just don't get it.

Ann Althouse said...

Harkennodog: The way it's analyzed, the homegrown product, though not bought or sold, is still related enough to the market because: 1. it supplies the users need which would be supplied by the market if he didn't grow it (thus, growing your own affects the market by reducing demand), and 2. it "overhangs the market" and might flow into the market (for example if the price went way up).

The 10th amendment is interpreted as just another way of saying that Congress has a limited set of powers -- it's a redundancy in this view, not a source of independent limitation on the powers. So you figure out the scope of the Commerce Power and then what's left to the state is whatever is beyond that scope.

Harkonnendog said...

Thanks again. Did you see Pirates of the Carribean?

Elizabeth : Wait! You have to take me to shore. According to the Code of the Order of the Brethren -

Barbossa: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate’s code to apply and you’re not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl , Miss Turner

lol. That's what I thought of when reading about this.
I have a post on this, thanking you and criticizing the ruling, on my blog.
Thanx again.

Ann Althouse said...

Funny. Lawyers must have written that.

Mike Honcho said...

It seems odd that you saw the decision as predictable. Most of the discussion surrounding the case seems to suggest that it was not predictable given the Court's previous commerce clause decisions. Not only did it divide the "federalism five," but it also seemed to run counter to the reasoning established in Morrison. The consensus seems to be that the decision will create a great deal of confusion for lower courts trying to decide commerce clause cases in the future.

Do you believe that the lower courts will interpret Raich with the same degree of clarity as you, or do you feel that it will create confusion?