Casenote
SEX, DRUGS AND GUNS: GONZALES V. RAICH AND THE EXPANDING
SCOPE OF THE COMMERCE POWER
The powers delegated by the . . . Constitution to the federal
government arefew and defined. Those which are to remain in the State
governments are numerous and indefinite.'
I. INTRODUCTION
Angel McClary Raich and Diane Monson are two extremely sick
women who use medicinal marijuana to ease excruciating pain caused
by their multiple conditions. 2 Both women have tried numerous
medications suggested by their doctors.3 Nevertheless, both women
found cannabis the only effective treatment for their ailments.4 Raich
and Monson's marijuana is cultivated, possessed, and consumed wholly
within the State of California, solely for medical purposes.5 Under
California law, specifically the Compassionate Use Act ("CUA"),
Monson and Raich legally use medicinal marijuana, but under federal
law, specifically the Controlled Substances Act ("CSA"), the two
women are using an illegal substance.6 In Raich v. Ashcroft, the Ninth
Circuit Court of Appeals ruled that the CSA is an unconstitutional
1. THE FEDERALIST No. 45, at 260 (James Madison) (Clinton Rossiter ed., Penguin
Books 1999).
2. Raich v. Ashcroft, 352 F.3d 1222, 1225 (9th Cir. 2003) (Raich suffers from an
inoperable brain tumor, seizures, life-threatening wasting syndrome, chronic pain, seizure
disorder, nausea, scoliosis, endometriosis, a uterine tumor, and many other medical
conditions, according to her Web site, available at
(last visited April 15, 2007).
http://www.angeljustice.org/article.php?list=type&type=6
Monson suffers from a severe chronic back pain and chronic muscle spasms. Raich, 352 F.3d
at 1225.).
3. Id.
4. Id.
5. Id.
6. Raich, 352 F.3d at 1224-26.
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[Vol. 25:887
exercise of congressional commerce power when applied to citizens who
use marijuana that has not traveled interstate and was not intended for
interstate or foreign commerce.7 However, in Gonzales v. Raich, the
Supreme Court overturned the Ninth Circuit, holding that the CSA is
constitutional as applied to Monson and Raich because their medicinal
8
marijuana substantially affects interstate commerce.
In a uniquely similar instance, Alvin Smith kept a lockbox with
over 1,700 sexually explicit pictures in his mother's home, some of the
pictures depicting underage females. 9 Smith did not purchase these
pictures. 1° He produced these pictures, wholly intrastate, and did not
intend to use them commercially. 1 The pictures were solely for Smith's
personal, non-economic use.12 In United States v. Smith, the Eleventh
Circuit Court of Appeals held, inter alia, that defendant's purely
intrastate, non-commercial production and possession of child
13
pornography did not substantially affect interstate commerce.
In yet another instance where coincidence provided a tie to bind,
Robert Stewart assembled and possessed five homemade machineguns.14
Stewart had no intention of marketing his homemade machineguns.15
His sole purpose was personal possession. 16 In United States v. Stewart,
the Ninth Circuit Court of Appeals overturned the defendant's
conviction for unlawful possession of a machinegun.1 7 The court held,
inter alia, that Congress could not, pursuant to its commerce power,
prohibit mere possession of homemade machineguns.1 8
How are these three seemingly unrelated factual situations similar?
All were purportedly subject to federal regulation under criminal statutes
enacted pursuant to the congressional commerce power.' 9 In addition, in
7. Id. at 1227-28.
8. Gonzales v. Raich, 545 U.S. 1, 31-32 (2005).
9. United States v. Smith, 402 F.3d 1303, 1310 (11th Cir. 2005), cert. granted,
vacated, and remanded, 545 U.S. 1125 (2005), rev'd, 459 F.3d 1276 (11 th Cir. 2006), cert.
denied, 127 S.Ct. 990 (2007).
10. Smith, 402 F.3d at 1315.
11. Id.
12. Id.
13. Id. at 1328.
14. United States v. Stewart, 348 F.3d 1132, 1134 (9th Cir. 2003), cert. granted,
vacated, and remanded,545 U.S. 1112 (2005), rev'd, 451 F.3d 1071 (9th Cir. 2006).
15. Id.
16. Id.
17. Id. at 1142.
18. Stewart, 348 F.3d at 1140.
19. See Gonzales v. Raich, 545 U.S. 1 (2005); Stewart, 348 F.3d at 1133; United States
v. Smith, 402 F.3d 1303, 1310 (11th Cir. 2005).
20071
THE EXPANDING SCOPE OF THE COMMERCE POWER
each case, all activities were conducted wholly intrastate and were of a
non-economic nature.20
The Constitution dictates that the federal Congress may act only if
there is express or implied authority to act bestowed by the
Constitution. 2' A key difference between federal and state governments
is that, generally, only the latter may exercise the police power. The
police power affords a state or local government the discretion to adopt a
law that is not prohibited by the Constitution.23 This Casenote argues
that Raich's holding has expanded congressional commerce power,
allowing it to regulate virtually all intrastate, non-economic activity, thus
exercising the police power. Furthermore, Raich has basically wiped out
any meaningful limits that the Supreme Court previously placed on
congressional ability to regulate intrastate, non-economic
activity in
24
Morrison.
v.
States
United
and
Lopez
v.
States
United
In addition to analyzing Gonzales v. Raich, this Casenote will
briefly discuss two cases, U.S. v. Smith25 and U.S. v. Stewart,2 6 that were
granted certiorari, summarily vacated, and then remanded back to their
respective circuit courts to be heard once again in light of Raich. Both
of these cases were heard on the circuit court level before Raich was
decided by the Supreme Court and, while factually different, both
addressed questions of law similar to that of Raich, specifically: can
Congress regulate wholly intrastate, non-economic production
and
27
possession for personal use pursuant to the Commerce Clause?
The second part of this Casenote will examine the relevant Supreme
Court Commerce Clause jurisprudence prior to Gonzales v. Raich. The
third part of this Casenote will examine the factual and procedural
history of Raich. The fourth part of this Casenote will analyze the
Supreme Court's decision in Raich and examine the effect the Raich
holding had on Stewart and Smith on remand.
20.
See Raich, 545 U.S. at 8-9; Stewart, 348 F.3d at 1133; Smith, 402 F.3d at 1310.
21.
THE FEDERALIST No. 45 (James Madison); see U.S. CONST. art. I.
22. See U.S. CONST. amend. X; see also United States v. Morrison, 529 U.S. 598, 618
(2000) (noting that the police power has essentially always been reserved to the states).
23. See U.S. CONST. amend. X.
24. See generally, Raich, 545 U.S. 1.
25. 402 F.3d 1303 (11th Cir. 2005), cert. granted, vacated, and remanded, 545 U.S.
1125 (2005), rev'd, 459 F.3d 1276 (11 th Cir. 2006), cert. denied, 127 S. Ct. 990 (2007).
26. 348 F.3d 1132 (9th Cir. 2003), cert. granted, vacated,and remanded,545 U.S. 1112
(2005), rev'd, 451 F.3d 1071 (9th Cir. 2006).
27. See Raich, 545 U.S. 1; Stewart, 348 F.3d at 1133; Smith, 402 F.3d at 1310.
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II. RELEVANT COMMERCE CLAUSE JURISPRUDENCE PRIOR TO
GONZALES V. RAICH
In the early nineteenth century the Supreme Court decided Gibbons
v. Ogden, adopting an expansive view of the congressional commerce
power.28 However, from the late nineteenth century through 1937, the
Court adopted a narrow definition of the congressional commerce
3 ° the Court overruled
power.2 9 For example, in Hammer v. Dagenhart,
an act of Congress restricting child labor because the authority to
exercise the police power over local trade and manufacture is reserved to
the States. In Hammer, the Court expressed its worries over the
consequences if Congress were able to exercise the police power over
wholly local activities, stating:
The far reaching result of upholding the act cannot be more plainly indicated
than by pointing out that if Congress can thus regulate matters entrusted to
local authority by prohibition of the movement of commodities in interstate
commerce, all freedom of commerce will be at an end, and the power of the
States over local matters may be31 eliminated, and thus our system of
government be practically destroyed.
During this era, many more federal laws enacted pursuant to the
congressional commerce power were held unconstitutional.32
Between 1937 and 1995, the Court did not find one federal law to
be unconstitutional under the Commerce Clause.33 During this time, the
Court re-adopted an expansive view of the commerce power, a view in
which Congress had de facto unlimited regulatory power.34 However,
this era came to an end in 1995 when the Supreme Court decided United
States v. Lopez. In Lopez, for the first time in 58 years, the Court struck
down a federal law as an unconstitutional exercise of the congressional
28. 22 U.S. (9 Wheat.) 1 (1824).
29. See Hammer v. Dagenhart, 247 U.S. 251 (1918), overruled by United States v.
Darby, 312 U.S. 100 (1941).
30. Hammer, 247 U.S. at 251.
31.
Id. at 276.
32. See, e.g., United States v. E.C. Knight Co., 156 U.S. 1 (1895); Carter v. Carter Coal
Co., 298 U.S. 238 (1936); contra The Shreveport Rate Cases, 234 U.S. 342 (1914) (holding
that where intrastate and interstate activities are so intermingled that full regulation of
interstate activity is appropriate).
33.
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 230 (2d
ed. 2002).
34. Id.
2007]
THE EXPANDING SCOPE OF THE COMMERCE POWER
commerce power.35 Five years later, the Court extended the holding of
Lopez in United States v. Morrison, further defining the modern scope of
the commerce power.36
Five years after Morrison, the Supreme Court decided Gonzales v.
Raich, wiping out any meaningful limits placed on the commerce power
in Lopez and Morrison. The following is a brief history of relevant
Supreme Court Commerce Clause jurisprudence from Gibbons through
Morrison. To truly appreciate the negative effect the Raich decision
could possibly have on the inherent limits of the Commerce Clause, one
must understand the framework in which Raich was decided.
A. Supreme Court Commerce Clause Jurisprudence:Pre-United States
v. Lopez
James Madison wrote, "[t]he powers delegated by the proposed
Constitution to the federal government are few and defined. Those
which are to remain in the State governments are numerous and
indefinite." 37 When one of the federal government's enumerated powers
is vague in terms of the actual scope of the power, the ambiguity gives
rise to the type of hotly contested debate over the scope of that
enumerated power that we have seen with the commerce power.
The United States Constitution provides that "Congress shall have
Power... [t]o regulate Commerce with foreign Nations, and among the
several States, and with Indian Tribes." 38 Understanding of the scope of
the commerce power has evolved considerably since the first case to
define the nature of the commerce power, Gibbons v. Ogden.39 In
Gibbons, Chief Justice Marshall offered a famously broad definition of
"commerce" when he wrote, "[c]ommerce, undoubtedly, is traffic, but it
is something more: it is intercourse. It describes the commercial
intercourse between nations, and parts of nations, in all its branches, and
is regulated by prescribing rules for carrying on that intercourse., 40 The
commerce power came about as the Framers' response to the central
issue giving rise to the Constitution itself, the lack of any meaningful
35. See United States v. Lopez, 514 U.S. 549 (1995).
36. See United States v. Morrison, 529 U.S. 598 (2000).
37. THE FEDERALIST No. 45, at 260 (James Madison) (Clinton Rossiter ed., Penguin
Books 1999).
38.
U.S. CONST. art. I, § 8 cl. 3.
39.
40.
22 U.S. (9 Wheat.) 1, 189-90 (1824).
Id.
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commercial regulatory power under the Articles of Confederation. 4 1 At
first, the Supreme Court adopted an expansive view of the congressional
commerce power and stated that the power to regulate commerce is
general, and has no limitations except those prescribed in the
Constitution itself. 42 Although the Court initially adopted an expansive
view, the fact remains that the Court explicitly stated in the same
opinion, "[i]t is not intended to say that these words comprehend that
commerce, which is completely internal, which is carried on between
man and man in a State, or between different parts of the same State, and
which does not extend to or affect other states. 43 This sentiment has
been reiterated time and time again throughout the history of Supreme
Court Commerce Clause jurisprudence. 44 Thus, while the Gibbons
Court maintained an expansive view of the commerce power, it
recognized that limitations on the commerce power are inherent in the
language of the Constitution.45
For nearly a century after Gibbons, the Commerce Clause was
mainly used to invalidate state legislation which proved to be
discriminatory.4 6 However, beginning in the late nineteenth century,
Congress "ushered in a new era of federal regulation under the
commerce power., 47 With the enactment of the Interstate Commerce
Act4 8 in 1887 and the Sherman Anti-Trust Act4 9 in 1890, Congress for
the first time utilized the Commerce Clause to affect a positive
influence.50 Beginning with this "new era," the Court repeatedly struck
41.
Gonzales v. Raich, 545 U.S. 1, 15 (2005); see also Gibbons, 22 U.S. at 13 (stating
that "The very object intended [in adopting the Constitution], more than any other, was to take
away such [commerce] power [from the States]. If it had not so provided, the constitution
would not have been worth accepting.").
42. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1-2 (1824).
43. Id. at 194.
44. See, e.g., Maryland v. Wirtz, 392 U.S. 183, 196 (1968) ("the power to regulate
commerce, though broad indeed, has limits" that "[t]he Court has ample power to enforce"),
overruled on other grounds by Nat'l League of Cities v. Usery, 426 U.S. 833 (1976).
45. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824).
It is not intended to say that these words comprehend that commerce, which is
completely internal, which is carried on between man and man in a State, or
between different parts of the same State, and which does not extend to or affect
other States. Such a power would be inconvenient, and is certainly unnecessary.
Id.
46. See United States v. Lopez, 514 U.S. 549, 553 (1995) (describing the early
development of the Commerce Power).
47. Id. at 554.
48. 24 STAT. 379.
49.
15 U.S.C. § 1 etseq.
50.
See Wickard v. Filburn, 317 U.S. I 11, 121 (1942) (describing the evolution of the
20071
THE EXPANDING SCOPE OF THE COMMERCE POWER
down federal legislation, taking the approach that Congress did not have
the authority to regulate activities such as production, manufacturing,5 1
and mining.52 The Court espoused a philosophy known as "dual
federalism," protecting state rights by finding federal legislation
unconstitutional under the Commerce Clause, or, alternatively, as a
violation of the Tenth Amendment.53 Dual federalism is the view that
the federal and state governments are separate sovereigns and that each
has its own zone of authority to regulate.54 According to this theory, it is
the courts' duty to protect the states from federal encroachment by
enforcing the Constitution and observing the limited nature of the federal
government's ability to regulate.
In 1937, the Court decided A.L.A. Schechter Poultry Corp. v.
United States,5 6 concluding that the distinction between direct and
indirect effects of intrastate transactions on interstate commerce is
The Court
fundamental to our federal system of government.57
concluded that without the direct/indirect distinction, ostensibly a
federalized system of government would exist, when in reality our
government would be centralized.58
In 1937, the Court decided NLRB v. Jones & Laughlin Steel
Corp.,5 9 initiating a shift away from the "direct/indirect effect" test. The
Jones & Laughlin Steel Corp. decision proved to be a monumental shift
in jurisprudence. For 40 years, the Supreme Court employed the
commerce power).
51.
See, e.g., United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895) (stating that
"Commerce succeeds to manufacture, and is not part of it ... ").
52. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936) (stating that "Mining
brings the subject matter of commerce into existence. Commerce disposes of it.").
See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918), overruled by United States v.
53.
Darby, 312 U.S. 100 (1941).
54. CHEMERINSKY, supra note 33, at 244.
55.
See id.
56. 295 U.S. 495, 550 (1935) (finding regulations fixing hours and wages of individuals
employed by an intrastate business unconstitutional under the Commerce Clause because the
activity being regulated has an indirect effect on interstate commerce).
57. Id. at 548 (stating that "the distinction between direct and indirect effects of
intrastate transactions upon interstate commerce must be recognized as a fundamental one,
essential to the maintenance of our constitutional system. Otherwise, as we have said, there
would be virtually no limit to the federal power, and for all practical purposes we should have
a completely centralized government.").
58. Id.
59. 301 U.S. 1 (1937) (upholding National Labor Relations Act holding that intrastate
activities that "have such a close and substantial relation to interstate commerce that their
control is essential or appropriate to protect that commerce from burdens and obstructions"
are within Congress's power to regulate). Id. at 37.
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direct/indirect distinction to strike down many pieces of federal
legislation as unconstitutional exercises of regulatory power under the
Commerce Clause.6 °
In 1941, the Court decided United States v. Darby, upholding
federal legislation prohibiting interstate shipment of goods by employees
making less than minimum wage.6' In Darby, the Court rejected its
previous view that production is local in nature and only subject to
regulation by state and local government.62 In doing so, the Court
stressed that the Commerce Clause places plenary power in Congress.6 3
Darby also marked the birth of the "bootstrap theory," which in
essence states that if Congress has the authority to regulate interstate
commerce, then it also has the authority to regulate activities affecting
Congress's ability to regulate interstate commerce that it otherwise
would be unable to regulate. 64 In Darby, Congress was able to pass a
law establishing a minimum wage because they had already passed a law
prohibiting interstate shipment of goods made by children.65
In 1942, the Court decided Wickard v. Filburn,66 setting the tone for
Commerce Clause jurisprudence over the next 50 years. The decision
marked the most expansive view of federal regulatory discretion under
the commerce power to date.67 In Wickard, a wheat farmer sought to
enjoin enforcement of an amendment to the Agricultural Adjustment Act
of 1938 that set a quota for wheat production and assigned to each
farmer an allotment.68 The wheat farmer also sought a declaratory
judgment stating that the wheat marketing quota provisions of the
amended Act were unconstitutional under the Commerce Clause.69 The
Court held the amended Agricultural Adjustment Act of 1938 to be a
valid exercise of federal regulatory power under the Commerce Clause,
reasoning that, while the impact of one farmer exceeding his personal
allotment was insignificant, "his contribution, taken together with that of
many others similarly situated, is far from trivial. 70 Simply put, the
aggregate effect of farmers across the country equally exceeding their
60.
61.
See, e.g., A.L.A. Schechter Poultry Corp., 295 U.S. 495, 551 (1935).
312 U.S. 100, 117(1941).
62.
63.
64.
Id. at 115-17.
Id.
at 115.
Id. at 118.
65.
66.
67.
68.
Darby, 312 U.S. at 115.
317 U.S. 111 (1942).
See id.
Id.
at 113.
69.
Id. at
70.
Wickard, 317 U.S. at 128.
H13-14.
2007]
THE EXPANDING SCOPE OF THE COMMERCE POWER
allotment was great enough to have a substantial influence on price and
market conditions, thus affecting interstate commerce; 7 1 therefore,
federal regulation under the commerce power was constitutional.72
After Wickard, for federal legislation enacted pursuant to the
congressional commerce power to be constitutional, the Court no longer
required that the regulated activity, person, or entity have a direct or
substantial effect on commerce. If the activity, in the aggregate across
the country, had a substantial effect nationally, the legislation would be a
valid exercise of the commerce power.73
Beginning with Jones & Laughlin Steel Corp., and culminating in
Wickard, the Court made a dramatic shift in philosophy, likely brought
on by mounting political pressure,7 4 once again espousing an expansive
view of the congressional commerce power. For the next 50-plus years
the Court repeatedly upheld federal legislation in Commerce Clause
challenges, failing to invalidate a single piece of legislation as
unconstitutional under the Commerce Clause. 75 The seemingly limitless
congressional commerce power is evidenced best in Hodel v. Indiana,
where the Court stated "[a] court may invalidate legislation enacted
under the Commerce Clause only if it is clear that there is no rational
basis for a congressional finding that the regulated activity affects
interstate commerce, or that there is no reasonable connection between
the regulatory means selected and the asserted ends. 76
Justice William Rehnquist did not agree with this seemingly
limitless definition of the congressional commerce power, stating "it
would be a mistake to conclude that Congress' power to regulate
. . .
is
unlimited. Some activities may be so private or local in nature that they
71. Id. at 128-29.
72. Id.
73. Id.
74. At the time, the Court was committed to laissez-faire economics, but the realities of
the Great Depression made this stance untenable. In addition, President Franklin Roosevelt
was upset that the Court repeatedly invalidated his New Deal legislation, so he came up with
his Court packing plan to get Justices on the Court with his views. While it eventually failed,
the Court packing plan may or may not have influenced the Court's switch in philosophy.
The real impetus for the change in philosophy was Justice Owen Roberts's switch to become
the fifth vote upholding two laws that had previously been invalidated. For an in-depth
discussion on the "switch in time that saved nine," see ROBERT A. CARO, THE YEARS OF
LYNDON JOHNSON: MASTER OF THE SENATE 58-65 (2002).
75. CHEMERINSKY, supra note 33, at 230.
76. Hodel v. Indiana, 452 U.S. 314, 323-24 (1981) (overruling the district court, which
found certain provisions of the Surface Mining Control and Reclamation Act of 1977 (Act),
30 U.S.C.S. § 1201 et seq., unconstitutional; reasoning that the Act did not interfere with a
States' right to control land use planning and thus did not violate the Tenth Amendment).
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simply may not be in commerce .... Our cases have consistently held
that the regulated activity must have a substantial effect on interstate
commerce." 77 Later, in Lopez, then Chief Justice Rehnquist held that
there must be a substantial effect on interstate commerce for Congress to
regulate intrastate activity.78
B. Supreme Court Commerce Clause Jurisprudence:Lopez & Morrison
1. United States v. Lopez: Narrowing Congress's Commerce
Power
Following the Supreme Court's shift in Commerce Clause
jurisprudence in 1937, for 55 years the Court did not strike down any
federal legislation enacted pursuant to the congressional commerce
power. The expansive scope of the congressional commerce power
allowed Congress to control all phases of business, whereas previously
there needed to be a direct effect on interstate commerce. 79 The Tenth
Amendment no longer acted as a check on federal regulatory power
under the Commerce clause.80 Congress could enact federal legislation
under the commerce power as long as there was a rational basis for
believing that the regulated activity had a substantial effect on interstate
commerce. 81 Congress took advantage of the broad definition of the
commerce power by enacting important civil rights laws 82 and criminal
laws.83
77. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 310-11
(1981) (Rehnquist, J., concurring).
78. United States v. Lopez, 514 U.S. 549, 559 (1995).
79. CHEMERINSKY, supra note 33, at 255; see also A.L.A. Schechter Poultry Corp. v.
United States, 295 U.S. 495, 548-49 (1935).
80. CHEMERINSKY, supra note 33, at 245.
81. Hodel v. Indiana, 452 U.S. 314, 323-24 (1981); see generally CHEMERINSKY, supra
note 33, at 255.
82. See, e.g., Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241, 261-62 (1964)
(upholding the constitutionality of Title II of the Civil Rights Act prohibiting discrimination
by public places of accommodation, reasoning that Congress has the authority under the
Commerce Clause to regulate the motel because many of its patrons were from out of state,
and thus was involved in interstate commerce); see also Katzenbach v. McClung, 379 U.S.
294, 305 (1964) (upholding Title I of the Civil Rights Act in the face of a challenge by a
restaurant, stating that "[tihe power of Congress [under the commerce clause] is broad and
sweeping.").
83. See, e.g., Perez v. United States, 402 U.S. 146, 146 (1971) (upholding Title II of the
Consumer Credit Protection Act, which prohibits loan sharking activities. The defendant
argued that the Act was unconstitutional as applied to him because his business operated
THE EXPANDING SCOPE OF THE COMMERCE POWER
2007]
However, in United States v. Lopez, in a 5-4 ruling, the Supreme4
Court invalidated the federal Gun-Free School Zones Act of 1990,85
holding that the Act exceeded Congress's Commerce Clause authority.
The Court based its decision in Lopez on a finding that the regulated
activity did not substantially affect interstate commerce.86 First, the
Court found that the Act was a criminal statute having nothing to do
with commerce, or any sort of economic enterprise, and that it was not
part of a larger regulation of economic activity which would be undercut
if the intrastate activity were not regulated.8 7 Second, the Court pointed
out that no jurisdictional element, or "hook," was present, which would
ensure, on a case-by-case inquiry, that the firearm in possession
substantially affected interstate commerce.88 For these two reasons, the
Act was held unconstitutional.89
Chief Justice Rehnquist wrote the majority opinion, affirmatively
stating at the beginning of the opinion that "the Act neither regulates a
commercial activity nor contains a requirement that the possession be
connected in any way to interstate commerce." 90 His emphasis on the
limited nature of the national government 9 1 signaled a shift away from
the overly broad definition of the commerce power and a return to the
notion that Article I of the Constitution limits Congress's powers to
those that are express or implied in its enumerated powers.
Justice Kennedy filed an interesting concurring opinion, in which
Justice O'Connor joined.92 They emphasized the role of the states as
laboratories, while stressing federalism and protecting the roles of the
separate branches of the federal government. 93 They argued that
wholly intrastate, but the Court rejected this argument reasoning that intrastate loan sharking
"directly effects" interstate commerce. Id. at 149). Building on the Perez decision, Congress
used this broad grant of criminal regulatory authority to enact the federal Racketeer
Influenced and Corrupt Organizations Act; 18 U.S.C. § 1962, a sweeping statute making it a
federal crime to participate in a pattern of racketeering activity, racketeering being defined
broadly to include many different activities. CHEMERINSKY, supra note 33, at 258-59.
84. 514 U.S. 549, 551 (1995) (recognizing that the Gun-Free School Zones Act of 1990
made it a federal offense "for any individual knowingly to possess a firearm at a place that
individual knows, or has reasonable cause to believe, is a school zone").
85.
Id.
86.
87.
88.
89.
90.
91.
92.
93.
Id. at 561.
Id.
Lopez, 514 U.S. at 561.
Id.
Id. at 551
Id. at566.
Lopez, 514 U.S. at 568-83 (Kennedy, J. and O'Connor, J., concurring).
Id. at 578 (Kennedy, J. and O'Connor, J., concurring).
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allowing states to deal with criminal issues such as gun possession in
schools was necessary, and that states had always retained the "police
94
power."
The majority decision was heatedly criticized by Justice Breyer in
his dissenting opinion, which argued that as long as there is a "rational
basis" for the Gun-Free School Zones Act, the Court should uphold the
Act.95 He criticized the majority for allegedly ignoring 56 years of
Supreme Court precedent, and for engaging in judicial activism. 96 He
reasoned that guns are inherently part of interstate commerce and that
they have an economic impact on interstate commerce.97
In Lopez, the Court identified "three broad categories of activity
that Congress may regulate under its commerce power.' 98 First,
Congress may "regulate [and protect] the use of the channels of
interstate commerce." 99 Second, Congress may legislate "to regulate and
protect the instrumentalities of interstate commerce." 10 0 Finally, the
category applicable to Raich and this Casenote, Congress may "regulate
0
those activities having a substantial relation to interstate commerce."' '
In regards to this last category, the Court wanted to eliminate any
uncertainty as to the proper test, making it explicitly clear that,
according to the great weight of [their] case law," a regulated activity
needs to substantially affect interstate commerce, as opposed to only
affecting interstate commerce. 0 2 The effect of the Lopez ruling was
immediate. Because of the Court's return to a narrow reading of the
Commerce Clause, 566 cases arguing Commerce Clause violations were
10 3
filed within four years.
94.
95.
96.
97.
98.
Id. at 583 (Kennedy, J. and O'Connor, J., concurring).
Id. at 615 (Breyer, J., dissenting).
Lopez, 514 U.S. at 623 (Breyer, J., dissenting).
Id. (Breyer, J., dissenting).
Id. at 558.
99.
Id.
100.
101.
Lopez, 514 U.S. at 558.
Id. at 558-59.
102.
103.
Id. at 559.
Samantha Everett, Raich v. Ashcroft: Medical Marijuana and the Revival of
Federalism,41 SAN DIEGO L. REv. 1873, 1888 (2004).
20071
THE EXPANDING SCOPE OF THE COMMERCE POWER
2. United States v. Morrison: Reaffirming Lopez
In United States v. Morrison,10 4 the issue before the Court was
whether the civil damages provision of the federal Violence Against
Women Act 0 5 was constitutional. The Morrison opinion reaffirmed the
new direction the Court embarked on in Lopez, once again in a 5-4
decision, holding that the Violence Against Women Act was
10 6
unconstitutional under the Commerce Clause.
The Morrison Court reaffirmed the three categories in which
07
Congress has the authority to regulate under the Commerce Clause,'
while establishing a controlling four-factor test for determining whether
a regulated activity "substantially affects" interstate commerce: 1)
whether the conduct in question regulates commerce or any sort of
economic enterprise; 2) whether the statute contains any "express
jurisdictional element that might limit its reach to a discrete set" of
cases; 3) whether the legislative history contains "express congressional
findings" regarding the effects of the regulated activity upon interstate
commerce;10 8 and 4) whether the link between the activity and the effect
on interstate commerce is attenuated.10 9
First, the Court found that the regulated activity was not in any
sense economic activity, Chief Justice Rehnquist writing:
Gender-motivated crimes of violence are not, in any sense of the phrase,
economic activity. While we need not adopt a categorical rule against
104. United States v. Morrison, 529 U.S. 598 (2000). In Morrison the petitioner, a
student at Virginia Polytechnic Institute (Virginia Tech), asserted, inter alia, that the
respondents, two members of the varsity football team at Virginia Tech assaulted and
repeatedly raped her. Id. at 602-05.
105. The Violence Against Women Act provides a civil remedy for the victims of
gender-motivated violence. 42 U.S.C. §13981 (2000). The petitioner based her claim that
this provision is constitutional on the third category Congress may regulate under the
Commerce Clause, that is, that § 13981 is a regulation of an activity that substantially affects
interstate commerce. Morrison, 529 U.S. at 609.
106.
Id. at 602.
107.
Id. at 608.
108. However, "the existence of congressional findings is not sufficient, by itself, to
sustain the constitutionality of Commerce Clause legislation." Morrison, 529 U.S. at 614.
See also Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 311 (1981)
("Simply because Congress may conclude that a particular activity substantially affects
interstate commerce does not necessarily make it so.").
109. Morrison, 529 U.S. at 610-13.
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[Vol. 25:887
aggregating the effects of any noneconomic activity in order to decide these
cases, thus far in our Nation's history our cases have upheld Commerce Clause
regulation of intrastate activity only where that activity is economic in
110
nature.
Thus, while not explicitly stating that an activity must be economic
in nature under the "substantial effects" test, the Court refused to allow
Congress to regulate a non-economic activity, which, according to the
Court, had an insufficient impact on the economy.' 1' Thus, at least in
the areas traditionally regulated by the states, Congress cannot regulate
non-economic activity based on the "substantial effects" test.i2
Furthermore, the Court states that "[w]here economic activity
substantially affects interstate commerce, legislation regulating that
activity will be sustained."' 13 The Court implied that when noneconomic activity substantially affects interstate commerce, Congress
may not regulate that activity. This seems to go farther than
the Lopez
4
1
further.'
even
test
effects"
"substantial
the
limiting
holding,
Congress set forth lengthy legislative findings that violence against
women has a substantial effect on interstate commerce across the
country. 115 Nevertheless, the Court rejected these findings, reasoning
that the "but-for" causal chain relied upon by the petitioners' 1 6 would
allow Congress to regulate virtually any crime nationwide, as long as the
aggregated effects on employment, production, transit, or consumption
have substantial effects on interstate commerce. 17
The Court emphasized the fact that the Founding Fathers denied the
110. Id. at 613.
111. Id.
112. In fact, in Raich v. Ashcroft, 248 F. Supp. 2d. 918, 923 n.2 (N.D. Cal. 2003), the
district court asserted that Morrison limits regulated activities to those economic in nature.
113. Morrison, 529 U.S. at 610 (quoting United States v. Lopez, 514 U.S. 549, 560
(1995)).
114. The Court emphasized the reasoning in Lopez, stating that "a fair reading of Lopez
shows that the noneconomic, criminal nature of the conduct at issue was central to [their]
decision in that case." Morrison, 529 U.S. at 610.
115.
Id. at 614.
116. Congress's relevant findings stated that gender-motivated violence "affects
interstate commerce 'by deterring potential victims from traveling interstate, from engaging in
employment in interstate business, and from transacting with business ....
'" Id. at 615
(quoting H.R. CONF. REP NO. 103-711, at 385 (1994)). The Court noted that they are not the
first to recognize that a "but-for" causal chain must have limits: "There is a view of causation
that would obliterate the distinction between what is national and what is local in the activities
of commerce." Id. at 616.
117. Morrison,529 U.S. at 615.
2007]
THE EXPANDING SCOPE OF THE COMMERCE POWER
federal government the police power, reserving it for the States. 18 In
doing so, the Court suggested that it was preserving one of the few
principles consistent with Commerce Clause jurisprudence since the
Commerce Clause was adopted, that is, distinguishing "between what is
truly national and what is truly local."' 19
Lopez and Morrison, taken together, are a clear shift away from the
broad, sweeping scope the congressional commerce power enjoyed
during the middle of the twentieth century. The Rehnquist Court made a
noticeable move towards protecting states' rights, and possibly even
narrowing the "rational basis" test under which the Court had been
operating. Obviously, the lasting effects
of these two cases have been
0
cast into doubt by the Raich holding.12
III. GONZALES V. RAICH
A. FactualHistory
Angel McCrary Raich and Diane Monson, the appellees, are two
women suffering from medical conditions so severe that they and their
doctors contend only the use of medical marijuana can ease the
excruciating pain.' 2' Raich and Monson avail themselves of medicinal
marijuana pursuant to the Compassionate Use Act ("CUA"), a California
state law authorizing limited cultivation, possession, and use of
medicinal marijuana upon written or oral recommendation of a
physician.'22
Both Monson and Raich have been using medicinal marijuana for
several years, relying heavily on its alleviating effects to get through
each day.123 Raich uses marijuana every two waking hours of every
single day. 24 Licensed, board-certified family practitioners treat both
Monson and Raich. Monson and Raich's practitioners have tried
numerous alternative medications, only to conclude that medicinal
marijuana is the only effective remedy for these women's severe
118.
119.
120.
121.
122.
123.
124.
See, e.g., id. at 617-18.
Id.
Gonzales v. Raich, 545 U.S. 1,5-7 (2005).
Id. at6-7.
Id.; see CAL. HEALTH & SAFETY CODE ANN. § 11357 (West 2005).
Raich, 545 U.S. at 6.
Raich v. Ashcroft, 352 F.3d 1222, 1225 (9th Cir. 2003).
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[Vol. 25:887
ailments. 125 As the district court stated' 26so succinctly, "[t]raditional
medicine has utterly failed these women."'
Monson cultivates her own cannabis, while Raich relies on her
caregivers, John Doe Number One and John Doe Number Two, to
provide her with cannabis free of charge and without any
remuneration. 27 In order to protect Raich's supply of cannabis the John
Does sued in an anonymous capacity. 128 Raich's cannabis is cultivated
"using only water and nutrients originating from within California. ' 1 29
The equipment and supplies used for cultivation are manufactured
within the borders of California. 30 Similarly, Monson's cannabis is
cultivated locally.131
On August 15, 2002, deputies from the Butte County Sheriff's
Department and agents from the federal Drug Enforcement Agency
("DEA") came to Monson's home. 32 The sheriff's deputies concluded
that Monson's cultivation, possession, and use of cannabis for medicinal
purposes was wholly proper under the CUA. 133 However, after a three
hour standoff in Monson's front-yard, including an unsuccessful
intervention by the Butte County District Attorney for the Eastern
District of California, DEA agents seized and destroyed Monson's six
cannabis 134plants as a violation of the Controlled Substances Act
(,CSA,).
While the DEA raided only Monson's home, both plaintiffs feared
future raids. 135 More importantly, Monson and Raich feared deprivation
of their medicinal marijuana.136 Monson and Raich sued then Attorney
General John Ashcroft and then Administrator of the DEA Asa
Monson and Raich sought
Hutchinson on October 9, 2002.137
injunctive relief. 138
permanent
and
preliminary
and
declaratory relief
Monson and Raich also sought, inter alia, a declaration that the CSA is
125.
Raich, 545 U.S. at 6-7; Raich, 352 F.3d at 1225.
126. Raich v. Ashcroft, 248 F. Supp. 2d 918, 918 (N.D. Cal. 2003).
127. Appellants' Opening Brief at 4, Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003)
(No. 03-15481) [hereinafter Brief]
128.
Id.
129.
130.
131.
132.
133.
134.
135.
136.
id. at 5.
Id.
Brief, supra note 127, at 5.
Gonzales v. Raich, 545 U.S. 1, 7 (2005).
Brief, supra note 127, at 5; Raich v. Ashcroft, 352 F.3d 1222, 1226 (9th Cir. 2003).
Brief, supra note 127, at 5; Raich, 352 F.3d at 1226.
Brief, supra note 127, at 5.
Raich, 352 F.3d at 1226.
137.
138.
Id.
Id.
20071
THE EXPANDING SCOPE OF THE COMMERCE POWER
unconstitutional as applied to them, 139 i.e., to the extent it purports to
prevent them from cultivating, obtaining,140 possessing, and consuming
medicinal marijuana pursuant to the CUA.
B. The CompassionateUse Act of 1996141
In 1996 California voters were asked whether the seriously ill
should have the right to obtain and consume medicinal marijuana when
medical use is deemed appropriate and has been recommended by a
licensed physician. 142 Voters answered in the affirmative, thus enacting
Proposition 215,43codified as the Compassionate Use Act of 1996, by
direct initiative. 1
139. The Supreme Court expressly reserved this issue in United States v. Oakland
Cannabis Buyers' Coop., 532 U.S. 483, 495 (2001) ("Nor are we passing today on a
constitutional question, such as whether the Controlled Substances Act exceeds Congress'
power under the Commerce Clause.").
140. Raich, 352 F.3d at 1224.
CAL. HEALTH & SAFETY CODE § 11362.5.
141.
142. See Raich, 352 F.3d at 1225.
143. The relevant text of the Compassionate Use Act of 1996 reads:
(A) To ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where that medical use is deemed appropriate and
has been recommended by a physician who has determined that the person's health
would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS,
chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which
marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use
marijuana for medical purposes upon the recommendation of a physician are not
subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan to provide
for the safe and affordable distribution of marijuana to all patients in medical need
of marijuana.
(2) Nothing in this section shall be construed to supersede legislation prohibiting
persons from engaging in conduct that endangers others, nor to condone the
diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be
punished, or denied any right or privilege, for having recommended marijuana to a
patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358,
relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's
primary caregiver, who possesses or cultivates marijuana for the personal medical
purposes of the patient upon the written or oral recommendation or approval of a
physician.
(e) For the purposes of this section, "primary caregiver" means the individual
designated by the person exempted under this section who has consistently assumed
responsibility for the housing, health, or safety of that person.
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[Vol. 25:887
The CUA is a California state law that has no bearing on federal
regulation. 144 The CUA only serves to protect medicinal marijuana users
from enforcement of California drug laws. 145
Individuals using
medicinal marijuana
under
the
CUA
are
still
subject
to federal
46
prosecution. 1
C. ControlledSubstances Act
After the declaration of a "national war on drugs," Congress
enacted the CSA as part of the Comprehensive Drug Abuse Prevention
and Control Act of 1970.147 Under the CSA there are five "schedules"
of drugs and substances which Congress designated "controlled
substances. 14 8 Marijuana is classified as a Schedule I controlled
substance, and considered one of the most dangerous controlled
substances, with a high potential for abuse and no medically accepted
treatment in the United States. 49 Congress's main goals in enacting the
CSA were to conquer drug abuse and to control the legitimate and
illegitimate traffic in controlled substances. 50 Moreover, Congress was
particularly concerned with the need to prevent the diversion of
legitimate medical drugs from legitimate to illicit channels. 15'
CAL. HEALTH & SAFETY CODE § II 362.5(b)-(e).
144. This is because of the Supremacy Clause in the United States Constitution. U.S.
CONST. art. VI, cl.2. In fact, there is explicit language in the CSA expressing congressional
intent to preempt state law in case the two conflict. 21 U.S.C. § 903. Since the CSA conflicts
with the CUA, the CSA preempts the CUA. See Cipollone v. Liggett Group, Inc., 505 U.S.
504, 517 (1992).
145.
United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1094 (N.D. Cal.
1998), rev'd, United States v. Cannabis Cultivators Coop., 190 F.3d 1109 (9th Cir. 1999),
cert. granted, 531 U.S. 1010 (2000), rev'd, 532 U.S. 483 (2001).
146. See Gonzales v. Raich, 545 U.S. 1, 7 (2005). Diane Monson found this out when
the Drug Enforcement Agency disregarded the CUA and destroyed her cannabis plants. Id.
147.
Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91513, 84 Stat. 1238, tit. 2. (Title II addresses drug control and enforcement as administered by
the Attorney General and the DEA).
148. See Raich, 545 U.S. at 13-14.
149. See Raich, 545 U.S. at 14. See 21 U.S.C. § 802(6), 812(a) for descriptions of
"controlled substances" and the five schedules.
150. Raich, 545 U.S. at 12-13.
151.
In particular, Congress made the following findings:
(1) Many of the drugs included within this subchapter have a useful and legitimate
medical purpose and are necessary to maintain the health and general welfare of the
American people.
(2) The illegal importation, manufacture, distribution, and possession and improper
use of controlled substances have a substantial and detrimental effect on the health
and general welfare of the American people.
THE EXPANDING SCOPE OF THE COMMERCE POWER
2007]
Because marijuana is classified as a Schedule I drug, the
manufacture, distribution, or possession of marijuana is a criminal
offense. 152 While marijuana's Schedule I classification could be
rescheduled so that 53medicinal use is legal, repeated rescheduling
attempts have failed.
Monson and Raich do not allege that passage of the CSA is outside
the scope of the commerce power.' 54 The actual challenge to the CSA is
very narrow. Monson and Raich argue that, as applied to them, the CSA
is unconstitutional because it categorically prohibits the wholly intrastate
and use of medicinal marijuana pursuant to
cultivation, possession,
55
California law.'
D. DistrictCourt
The District Court for the Northern District of California denied the
(3) A major portion of the traffic in controlled substances flows through interstate
and foreign commerce. Incidents of the traffic which are not an integral part of the
interstate or foreign flow, such as manufacture, local distribution, and possession,
nonetheless have a substantial and direct effect upon interstate commerce because(A) after manufacture, many controlled substances are transported in interstate
commerce,
(B) controlled substances distributed locally usually have been transported in
interstate commerce immediately before their distribution, and
(C) controlled substances possessed commonly flow through interstate
commerce immediately prior to such possession.
(4) Local distribution and possession of controlled substances contribute to
swelling the interstate traffic in such substances.
(5) Controlled substances manufactured and distributed intrastate cannot be
differentiated from controlled substances manufactured and distributed interstate.
Thus, it is not feasible to distinguish, in terms of controls, between controlled
substances manufactured and distributed interstate and controlled substances
manufactured and distributed intrastate.
(6) Federal control of the intrastate incidents of the traffic in controlled substances
is essential to the effective control of the interstate incidents of such traffic.
21 U.S.C. §§ 801(1)-(6).
152. Raich, 545 U.S. at 14. The sole exception to these prohibitions is use of marijuana
as part of a Food and Drug Administration pre-approved research study. See United States v.
Oakland Cannabis Buyers' Coop., 532 U.S. 483, 490 (2001).
153. The National Organization for the Reform of Marijuana Laws ("NORML") has
The DEA has repeatedly rejected
been trying to reschedule marijuana since 1972.
rescheduling petitions, and the Court of Appeals for the District of Columbia has on five
separate occasions over 30 years upheld challenges to the DEA Administrator's final order.
Raich, 545 U.S. at 15 n.23.
154. Id. at 15.
155. Id.
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[Vol. 25:887
plaintiffs' motion for a preliminary injunction, "despite the gravity of
plaintiffs' need for medical cannabis, and despite the concrete interest of
California to provide it for individuals like them." 15 6 The court
concluded that the plaintiffs had not established the "irreducible
minimum" of a likelihood of success 1on
the merits of their claims
57
needed to grant a preliminary injunction.
The court discussed Lopez and Morrison, recognizing that those
158
two cases somewhat "abridged" the federal commerce power.
However, the court declined to apply the reasoning and holdings of
Lopez and Morrison, based on its finding that those holdings were not on
point in the instant case.' 59 Allegedly, both Lopez and Morrison fail to
address the specific question the court was dealing with, that is,
"whether the Controlled Substances Act, as applied in this case, is
beyond the purview 6of
Congress's power to regulate activity under the
0
Clause."'
Commerce
The district court's reasoning relied on purported Ninth Circuit
precedent in the form of two cases that rejected Commerce Clause
challenges by defendants charged with marijuana possession and
distribution offenses.' 61
The district court also found that the Tenth Amendment did not act
as a restraint on Congress's ability to enact the CSA. 162 The court
reasoned that as long as the CSA is a valid exercise of an enumerated
power, i.e. the Commerce Clause, Supreme Court
precedent indicates
63
that the CSA is a valid exercise of federal power.
E. Ninth CircuitDecision
The plaintiffs appealed to the Ninth Circuit Court of Appeals. 164
The Ninth Circuit reversed and remanded the case, ordering the district
156.
157.
158.
Raich v. Ashcroft, 352 F.3d 1222, 1226 (9th Cir. 2003).
Id.; Gonzales v. Raich, 545 U.S. 1, 8 (2005).
Raich, 352 F.3d at 1229-30.
159. Id.
160. Raich v. Ashcroft, 248 F. Supp. 2d 918, 926 (N.D. Cal. 2003).
161. Id. at 924-25 (citing United States v. Tisor, 96 F.3d 370 (9th Cir. 1996); United
States v. Visman, 919 F.2d 1390 (9th Cir. 1990)).
162. Raich, 248 F. Supp. 2d at 926-27.
163. The district court seemingly restricts instances where the Tenth Amendment acts as
a check on federal intrusion to those instances where the federal government attempts to
compel the states to act in a certain way, citing New York v. United States, 504 U.S. 144, 15657 (1992), for the proposition that "ilt is in this sense that the Tenth Amendment 'states but a
truism that all is retained which has not been surrendered."' Raich, 248 F. Supp. 2d at 927.
164. Raich, 352 F.3d 1222.
THE EXPANDING SCOPE OF THE COMMERCE POWER
2007]
court to enter a preliminary injunction. 165 In a 2-1 decision, the court
held, on the basis of the four factors enumerated in Morrison, that the
statute in question was likely unconstitutional as applied to the
appellants, and that the appellants had demonstrated a strong likelihood
of success on the merits of their claim. 166
1. The Majority Decision
The court found that it would be inappropriate to apply the Wickard
"aggregation principle" because the majority did not classify the
regulated activity as commercial. 167 Because the court found that the
appellants demonstrated a strong likelihood of success on the merits, it
declined to 168
entertain the appellant's argument based on the Tenth
Amendment.
First, the court narrowly defined the class of activities at issue in
this case as the "intrastate, noncommercial cultivation, possession and
use of marijuana for personal medical purpose on the advice of a
physician and in accordance with state law." 169 The court found that this
narrow definition was supported by their recent decision in United States
v. McCoy, 170 where the court held that a statute purportedly prohibiting
the possession of child pornography was unconstitutional as applied to
wholly intrastate possession and use of visual depictions, never mailed,
shipped or transported interstate, and not intended for any economic or
commercial use.171
Next, the court considered whether the regulated activity in
question had a "substantial effect" on interstate commerce sufficient to
subject it to regulation under the Commerce Clause. 172 The court relied
upon the four-factor test enumerated in Morrison to determine whether
use of medicinal
the legal, wholly intrastate cultivation, possession, and
73
marijuana, substantially affects interstate commerce.1
165.
166.
167.
Id. at 1235.
Id. at 1227.
Id. at 1230.
168. Raich, 352 F.3d at 1227.
169. Id. at 1228. (stating that "[tihis class of activities does not involve sale, exchange, or
distribution ...the class of activities covered here represents a substantial portion of the
conduct covered by the statute.").
170. 323 F.3d 1114 (9th Cir. 2003).
171. Id. at 1115 (involving a photograph taken at the home of a mother and daughter with
their genitals exposed, which never entered or was intended to enter interstate commerce).
172. Raich, 352 F.3d at 1229.
173. Id. at 1229-34.
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[Vol. 25:887
The court found that the CSA does not apply to the limited class of
activities at issue, as it does not regulate any sort of commerce or
economic enterprise. 174 The court embarked on a lengthy discussion of
what constitutes commerce, distinguishing the marijuana provided to
Raich by her caregivers from commercial marijuana because it is
provided to her free of charge and without the expectation of
remuneration. 175 Once again, the court compared the instant case to
McCoy, reasoning that if "simple intrastate possession ... [of a] homegrown picture of a child taken and maintained for personal use is not a
fungible product, and.., there is no economic connection - supply and
demand or otherwise - between possession of such a picture and the
national multi-million dollar commercial pornography industry," the
medicinal marijuana in question here does not have76 any relation to larger
drug trafficking as to make it economic in nature.'
Because the court found that the activity in question was not
economic in nature, it declined to apply the Wickard aggregation
principle.177 The court reasoned that in Morrison and Lopez the
Supreme Court explicitly stated that the aggregation principle is not
applicable to non-commercial, non-economic activities. 178 The court
also rejected the argument that the activity being regulated was
indistinguishable from the activity being regulated in Wickard, reasoning
that the small amount of marijuana being 79consumed by the appellants
was unlikely to be sold in the marketplace.
The court also rejected the argument that the aggregation principle
should apply because marijuana is a fungible commodity. 180 The court
reasoned that, analogous to McCoy, there is nothing suggesting that the
appellants are interested in selling the marijuana in the marketplace.' 8'
In addition, because the court determined the regulated activity was noneconomic in nature, the fungibility of the marijuana was a non-factor
because the aggregation principle only applies where the activity's
commercial nature is apparent. 82 Thus, the court found that under the
174. Id. at 1229.
175.
Id. at 1228.
176. Raich, 352 F.3d at 1230 (quoting United States v. McCoy, 323 F.3d 1114, 1131 (9th
Cir. 2003)).
177.
Id.
178.
Id.
179.
Id. at 1230, n.4.
180.
181.
182.
Raich, 352 F.3d at 1231.
Id.
Id.
THE EXPANDING SCOPE OF THE COMMERCE POWER
2007]
first Morrison
factor, the CSA was unconstitutional as applied to the
83
appellants.1
The court also found that the CSA was unconstitutional as applied
84
to the appellants because it failed the second Morrison consideration.,
The CSA does not include a "jurisdictional hook," i.e., limitation, which
would limit the CSA to "a discrete set of cases that substantially affect
interstate commerce." 185
The court downplayed the existence of congressional findings to
support the CSA by making two arguments rebuffing the applicability of
those findings to their narrow definition of the class of activities in
question. 186 First, the court argued that there is nothing to indicate that
Congress contemplated anything resembling the class of activities in
question; furthermore, if Congress had made findings regarding the class
of activities in question, they would not have resembled the relevant
findings in question. 187 Second, the court cited Morrison for the
proposition that Congressional findings are not dispositive of
constitutionality.188
According to the court, the existence of
congressional findings is not nearly as important as the first and fourth
Morrison factors; therefore, even if it were decided that these
Congressional findings did support an argument of Constitutionality,
189
they would not be enough if the first and fourth factors failed.
The court finished addressing the Morrison factors by finding that
the link between the regulated activity and a substantial effect on
interstate commerce is attenuated at best. 190 While acknowledging that
regulating medicinal marijuana could presumably reduce the interstate
trafficking demand, the court could not see such an effect being
substantial.' 9' In a footnote, the court addressed the argument that if the
seeds were grown out of state, the marijuana is part of interstate
183.
Id.
184. Raich, 352 F.3d at 1231.
185. Id.
186. Id. at 1232.
187. Id. at 1231-32.
188. Raich, 352 F.3d at 1232 (stating that "[T]he existence of congressional findings is
not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. ...
Rather, [w]hether particular operations affect interstate commerce sufficiently to come under
the constitutional power of Congress to regulate them is ultimately a judicial rather than a
legislative question, and can be settled finally only by this Court.")
189.
Id.
190.
Id. at 1233.
191.
Id.
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[Vol. 25:887
commerce.192 The court rejected this argument, relying on McCoy for
guidance, where the government tried to argue that the film and camera
were manufactured out of state and thus were part of interstate
commerce. 193 In McCoy the court expressed doubt as to whether the fact
that the film and camera were manufactured out of state added any
substance to the Commerce Clause analysis. 94 Therefore, the court in
the instant case decided that the fact that the seeds were grown out of
state and shipped into California provides no support for the
government's assertion of federal jurisdiction.195
Finally, the court considered the hardship placed on the appellants
if injunctive relief were denied and the public interest factors associated
with deferring to the Congressional regulation. 96 The court found that
significant hardship would be imposed on the appellants if injunctive
relief were denied due to their need for medicinal marijuana.' 97 The
court also found that this hardship substantially outweighed the public
interest presumption of constitutional validity of congressional
of the Food and Drug Authority's ability
legislation and the importance
198
medicine.
regulate
to
2. The Dissenting Opinion
Judge Beam dissented, arguing that it is impossible to distinguish
the regulated activity in the instant case from the regulated activity in
Wickard.199 He went on to analyze the merits of the case under the four192.
Raich, 352 F.3d at 1233 n.8.
193.
194.
Id.
Id.
195. Id. at 1234. The court also cites to United States v. Stewart, 348 F.3d 1132, 1135
(9th Cir. 2003), to support the proposition that just because materials used to construct or
facilitate the regulated activity possibly traveled in interstate commerce at one time or another,
does not provide support for federal jurisdiction. If this were so, virtually everything would
be subject to government regulation, depending on the level of generality one uses to describe
the regulated activity. Raich, 352 F.3d at 1234.
196. Raich, 352 F.3d at 1234.
197.
198.
Id.
Id.
199. Id. at 1235 (Beam, J., dissenting). Before Judge Beam addressed the merits of the
Commerce Clause challenge, he engaged in a lengthy analysis as to whether this case was ripe
for review, concluding that it probably was not. However, recognizing that "the plaintiffs
arguably may have standing," he addressed the merits of their Commerce Clause challenge.
Judge Beam also attempted to distinguish the facts of McCoy, arguing that because the
defendant there had been prosecuted and convicted under the statute he was challenging "as
applied" she did not suffer from the standing and ripeness issues that purportedly plague the
instant appellants. Id.
20071
THE EXPANDING SCOPE OF THE COMMERCE POWER
factor Morrison test, finding three of the four factors favoring
constitutionality. 200
The only factor he found lacking was the
jurisdictional element factor. 20 1 He conceded there is no jurisdictional
element, but argued that lack of a jurisdictional element is not
dispositive evidence of unconstitutionality. °2
Judge Beam also took issue with the court's definition of the
regulated activity, disagreeing with the majority's classification of the
regulated activity at issue as non-economic activity. 203 He argued that
the wheat kept by the farmer in Wilburn was as non-economic as an
activity can get since it was produced for home consumption, without
the intent to market it. 2°4 However, the farmer in Wickard sold the
majority of the wheat he grew, keeping only a small amount for himself,
while the appellants in Raich never intended to sell any of their
205
medicinal marijuana.
F. The Supreme Court decision
1. Majority Opinion
Justice Stevens delivered the opinion of the Court, in which Justices
Kennedy, Souter, and Ginsburg joined.2 °6 The Court held that
Congress's commerce authority includes the power to prohibit the local
production, possession, and use of medicinal marijuana in compliance
with California's Compassionate Use Act.20 7
Parts I and II of the opinion detail the facts and procedural history
of the case, the history of the Compassionate Use Act, and the history of
the Controlled Substance Act, particularly with regard to the regulation
of marijuana. 208 Part III begins with a discussion of the history of
Supreme Court Commerce Clause jurisprudence. 20 9 The Court noted
that "when a general regulatory statute bears a substantial relation to
commerce, the de minimis character of individual instances arising under
200.
201.
202.
203.
204.
205.
206.
207.
208.
209.
Raich, 352 F.3d at 1239-43 (Beam, J., dissenting).
Id. at 1241 (Beam, J., dissenting).
Id. at 1243 (Beam, J., dissenting).
Id. at 1239-43 (Beam, J., dissenting).
Raich, 352 F.3d at 1238-39 (Beam, J., dissenting).
Gonzales v. Raich, 545 U.S. 1, 19 (2005).
Id. at 3.
Id. at 2.
Id. at 5-15.
Raich, 545 U.S. at 15.
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[Vol. 25:887
that statute is of no consequence.,, 2 10 The Court then stated that Wickard
v. Filburn is of particular relevance to this case. 21' A comparison of the
instant case and Wickard followed, the Court concluding that similarities
and that the instant case could not
between the two cases were "striking"
21 2
be distinguished from Wickard.
The Court also rejected the argument that, because Congress did
not make a specific finding that the appellant's regulated activity
substantially affected the larger interstate marijuana market, the CSA is
unconstitutional as applied to the appellants.2 13
The opinion stated that in assessing the scope of Congress's
commerce power, the Court need not determine whether respondents'
activities, taken in the aggregate, substantially affect interstate
commerce in fact, but only whether a "rational basis" exists for so
214
Due to enforcement difficulties that attend distinguishing
concluding.
marijuana cultivated locally from that grown elsewhere, and concerns
about diversion into illicit channels, the Court had no difficulty
concluding that Congress had a rational basis 21 5 for believing that failure
to regulate the intrastate manufacture and possession of marijuana would
leave a "gaping hole in the CSA. 216
Part IV of the opinion discussed the appellants' reliance on Lopez
and Morrison to support their claim that Congress lacks the ability to
regulate the intrastate cultivation, possession, and use of medicinal
marijuana in California.217 The Court dismissed appellants reading of
Lopez and Morrison as too broad, while asserting that the statutory
challenges in those cases were "markedly different" from the instant
210. Id. at 17 (quoting Maryland v. Wirtz, 392 U.S. 183, 196 n. 27 (1968)).
211. Id. at 17.
212. Id. at 18. The Court reasoned that a primary purpose of the Agricultural Adjustment
Act in Wickard was to control market prices in interstate commerce, while in the instant case,
a primary purpose of the CSA is to control supply and demand of controlled substances in
both lawful and unlawful drug markets. The Court stated that one of the reasons Congress
had a rational basis in Wickard for regulating wheat grown for home consumption was that
rising market prices could draw such wheat into the interstate market, lowering prices; the
parallel concern for including home-consumed marijuana in the CSA is that the strong
demand for marijuana will draw legally consumed medicinal marijuana into the market.
Raich, 545 U.S. at 19.
213. Raich, 545 U.S. at 21 ("the absence of particularized findings does not call into
question Congress' authority to legislate.").
214. Id. at 22.
215. The Court applied the "rational basis" standard to decide whether Congress had the
authority to enact the CSA. Under the "rational basis" test, as long as Congress had a rational
basis to enact the challenged legislation, the Court will defer to Congress's judgment. Id.
216. Id. at 22.
217. Raich, 545 U.S. at 23.
THE EXPANDING SCOPE OF THE COMMERCE POWER
2007]
case. 21 8 Basically, the Court distinguished the instant case from Lopez
and Morrison because the CSA directly regulates activities that are
"quintessentially economic,, 219 while the activities in both Lopez and
Morrison were defined as non-economic, or non-commercial.2 2 °
The Court rejected the Ninth Circuit's classification of the
respondent's activities as a "separate and distinct" class of activities,
reasoning that the purported class of activities was part of a larger
regulatory scheme and that it is within Congress's discretion to include
or exempt the purported class of activities. 221 Two arguments were
advanced to buttress this conclusion: first, simply because marijuana is
used for medical purposes cannot serve to distinguish it from the core
activities regulated by the CSA; second, the Supremacy Clause mandates
that the CSA trump the CUA in this instance.222 While the respondents
argued that the Supremacy Clause does not apply because their activities
were not part of an essential, larger regulatory scheme, the Court
rejected this argument, proposing that an exemption under the CUA
would enlarge the supply of illicit marijuana, substantially contributing
to the illicit market the CSA seeks to regulate.22 3
To conclude Part IV of the opinion, the Court alleged that the
respondent's case came down "to the claim that a locally cultivated
product that is used domestically rather than sold on the open market is
not subject to federal regulation," concluding that Wickard, the
"undisputed magnitude" of the marijuana market, and the findings in the
CSA mandate a holding in favor of appellants.224
2. Justice Scalia's Concurrence
Justice Scalia filed a concurring opinion, agreeing with the
majority's decision, but "writ[ing] separately because [his]
understanding of the doctrinal foundation on which that holding rests
[was], if not inconsistent with that of the Court, at least more
nuanced. ''225 Justice Scalia grounded his understanding of Congress's
power to enact legislation to regulate intrastate medicinal marijuana
218.
Id.
219.
Id. at 25.
220.
221.
222.
223.
224.
225.
Id.
Raich, 545 U.S. at 26.
Id. at 25-29.
Id. at 30.
Id. at 33.
Raich, 545 U.S. at 33 (Scalia, J., concurring).
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[Vol. 25:887
cultivation, possession, and use under the Commerce Clause in the
Necessary and Proper Clause.2 26 He asserted that the CSA, as applied to
respondents, is valid because Congress could reasonably conclude that
the CSA's goal, prohibiting marijuana from trading in the interstate
market, "could be undercut" if the activities in question were exempted
from its general scheme.227 This is because, allegedly, marijuana is a
fungible commodity and it is impossible to distinguish medicinal
marijuana from illicit marijuana.228
3. Justice O'Connor'sDissent
Justice O'Connor, joined by Chief Justice Rehnquist and Justice
Thomas as to all but Part III, filed a dissenting opinion.229 Justice
O'Connor argued that the Court was obliterating any meaningful
restrictions on Congress's commerce authority by allowing Congress to
criminalize intrastate production, possession, and consumption of
medicinal marijuana authorized by state law, thus stifling an express
choice by a State in which traditionally the State has retained the
authority to regulate. 230 Further, Justice O'Connor argued that the
majority disregarded precedent, specifically Morrison and Lopez;
generally, she argued that the Court ignored "the federalism principles
that have driven our Commerce Clause cases."23' Justice O'Connor also
attacked the Majority's purported "shift in focus from the activity at
issue in this case to the entirety of what the CSA regulates," and also the
allegedly broad definition of economic activity that "threatens to sweep
all of productive human activity into federal regulatory reach. 232
Justice O'Connor made a strong argument that this case is
distinguishable from Wickard, reasoning that the Agricultural
226. Id. (Scalia, J., concurring). Justice Scalia pointed out that there are restraints on
Congress's power under the Necessary and Proper Clause. He cited to McCulloch v.
Maryland for the proposition that "even when the end is constitutional and legitimate, the
means must be appropriate and plainly adapted to that end. Id. at 2218 (Scalia, J., concurring)
(quoting McCulloch v. Maryland, 4 Wheat. 316,421 (U.S. 1819). While the Majority opinion
briefly refered to Congress's ability to enact the CSA under the Necessary and Proper Clause,
Justice Scalia emphasized that the regulated activity in question is properly regulated under
the CSA due to the Necessary and Proper Clause, while the Majority's main arguments
focused on other aspects of the case. Id. (Scalia, J., concurring)).
227. Raich, 545 U.S. at 36 (Scalia, J., concurring).
228.
229.
230.
Id. at 40 (Scalia, J., concurring).
Id. at 42 (O'Connor, J.,
dissenting).
Id. at 57 (O'Connor, J., dissenting).
231.
232.
Raich, 545 U.S. at 57 (O'Connor, J.,
dissenting).
Id. at 49 (O'Connor, J., dissenting).
2007]
THE EXPANDING SCOPE OF THE COMMERCE POWER
Adjustment Act of 1938 did not reach small-scale, noncommercial
wheat
233
farming; in contrast, the CSA is a "limitless assertion of power.,
Justice O'Connor also addressed the "Necessary and Proper
Clause" argument, arguing that characterizing the instant case as such
does not change the analysis significantly because Congress cannot use
the Clause to undermine the Tenth Amendment and the theory of
enumerated powers.234 She vigorously maintained that there was not
enough evidence for the Court to find that the regulated activity in
question substantially affected the national illicit drug market, regardless
of what substantial effects theory the Court was using ("i.e., whether the
activity substantially affects interstate commerce, whether its regulation
is necessary to an interstate regulatory scheme, or both").235
Furthermore, the allegedly "bare declarations" found in the introduction
to the CSA did not amount to the Congressional findings in Wickard as
the Majority argued, they were just conclusory statements insisting that
regulation of controlled substances is absolute.2 36
4. Justice Thomas's dissent
Justice Thomas argued along the same lines as Justice O'Connor,
taking her argument one step further. He asserted that the Court has
obliterated any meaningful restrictions on Congress's Commerce Power
by allowing Congress to criminalize the wholly intrastate, non-economic
production, possession, and consumption of medicinal marijuana
through CSA. In Justice Thomas's opinion, the majority was giving
Congress the power to regulate any activity they see fit under the
Commerce Clause.237 Continuing in the same vein as his previous
dissents in Lopez and Morrison, Justice Thomas believed that the
"substantial effects" test is too broad and that it eliminates any
233. Id. at 51 (O'Connor, J., dissenting).
234. Id. at 55 (O'Connor, J., dissenting).
235. Raich, 545 U.S. at 51 (O'Connor, J., dissenting).
236. Id. at 54 (O'Connor, J., dissenting). In Wickard, the Court found that "wheat was
the most variable factor in the size of the national wheat crop, and that on-site consumption
could have the effect of varying the amount of wheat sent to market by as much as 20
percent." Wickard v. Filburn, 317 U.S. 111, 127 (1942). Here, the majority refered to the
introductory remarks of the CSA, which state: (1) local distribution and possession of
controlled substances causes "swelling" in interstate traffic; (2) local production and
distribution cannot be distinguished from interstate production and distribution; (3) federal
control over intrastate incidents "is essential to effective control" over interstate drug
trafficking. 21 U.S.C. §§ 801(1)-(6); Raich, 545 U.S. at 13-14.
237. Id. at 57-58 (Thomas, J., dissenting.)
[Vol. 25:887
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restrictions implied in the Commerce Clause.
8
IV. ANALYSIS
A. Duty v. Desire: Correctly Decided With an Unfortunate Outcome
With extreme candor, Justice Stevens expressed regret over the
outcome of Raich in a speech addressing a bar association meeting in
Las Vegas only two months after the case was decided.2 39 While Justice
Stevens "was convinced that the law compelled a result that [he] would
have opposed if [he] were a legislator," he asserted that his "duty to
uphold the application of the federal statute was pellucidly clear., 240 A
close examination of Supreme Court Commerce Clause jurisprudence
reveals that Justice Stevens is correct that the law dictated the eventual
outcome of Raich.24 1 He is also correct that it was an unfortunate
outcome, not only because it deprives a State of the ability to exercise its
traditional role as to the police power, but also because Congress's
power to regulate interstate commerce under the Commerce Clause has
been significantly expanded, so that a return to pre-Lopez seems
inevitable.
1. Wickard's Staying Power
The Court's decision in Raich seems to have been an easy one in
light of Wickard as binding precedent. In Part III of the majority
opinion, the Court entertained each of the respondent's attempts to
distinguish Wickard from Raich, but it was able to make a coherent,
sound argument that Wickard is indistinguishable from the case at
hand.242 By analyzing the respondent's activities in light of the
"substantial effects" test set forth in Wickard, the Court easily concluded
that the respondent's activities substantially affect interstate commerce,
given Congress's findings that intrastate cultivation, possession, and use
of controlled substances can affect the interstate market for controlled
238.
Id.
239. Linda Greenhouse, Justice Weighs Desire v. Duty (Duty Prevails), N.Y. TIMES,
Aug. 25, 2005, at Al.
240.
Id.
241.
242.
See, e.g., Wickard v. Filburn, 317 U.S. 111, 127 (1942).
Gonzales v. Raich, 545 U.S. at 15-18.
THE EXPANDING SCOPE OF THE COMMERCE POWER
2007]
substances.243
Wickard established "that Congress can regulate purely intrastate
activity that is not itself 'commercial,' in that it is not produced for sale,
if it concludes that failure to regulate that class of activity would
undercut the regulation of the interstate market in that commodity. ' 2 "
Advancing this line of reasoning, the Court seemed to be making use of
the bootstrap theory.245 In Wickard, the farmer was producing more
wheat than he was allowed given his allotment under the Agricultural
Adjustment Act.24 6 The wheat in Wickard was not meant for sale, thus it
could not be considered "commercial" in nature.247 Furthermore, the
Court in Wickard did not treat the excess wheat as part of his
commercial operation. 248 However, Congress found that the aggregate
production of wheat, only for use on farms and not intended for sale, had
a significant impact on wheat's market price. 249 Therefore, because
Congress can regulate the interstate market for wheat, it has the ability to
regulate an activity that substantially affects Congress's ability to
regulate the interstate market for wheat, i.e. the production of wheat on
farms meant for consumption and not commerce.
In the case at hand,
the CSA explains that Congress found it necessary to "encompass local
activities.",25' The Court made it clear that, because Congress has the
ability to regulate the illicit interstate market for controlled substances, it
has the ability to regulate the wholly intrastate cultivation, possession,
and use of controlled substances, even if that cultivation, possession, and
use is legalized by a State.25 2 This is because that wholly intrastate
activity affects Congress's ability to regulate the interstate market for
illicit drugs that it clearly has the power to regulate under the Commerce
Clause. 253 Additionally, that wholly intrastate activity, in Congress's
opinion, has the ability to undercut the regulation of the illicit interstate
market for controlled substances. 4
Even if the Court did not agree with Congress's findings, as it
243.
244.
245.
246.
See id. at 17-22.
Id. at 18.
Id.
Raich, 545 U.S. at 17-18.
247.
248.
Id. at 18.
249.
250.
251.
252.
Id.
Raich, 545 U.S. at 17.
Id. at 20.
Id. at 21-22.
Id.
253.
Id.
254.
Raich, 545 U.S. at 22.
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[Vol. 25:887
clearly did not agree with their findings in Morrison, Congress only
needs to have a "rational basis" for finding that the respondent's
activities substantially affect interstate commerce.25 5 By terming
marijuana a "fungible" commodity, and by recognizing the inherent
enforcement difficulties "that attend distinguishing between marijuana
cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5),216
and concerns about diversion into illicit channels," the Court was able to
ground it's holding firmly in established, if not contradictory and
confusing, precedent. 7
As if Wickard was not enough to decide this case, the Court cited
Perez v. United States,258 stating that "[w]hen Congress decides that the
'total incidence' of a practice poses a threat to a national market, it may
regulate the entire class., 259 Furthermore, the Court directly quoted
Perez, stating that "when it is necessary in order to prevent an evil to
make the law embrace more than the precise thing to be prevented it
may do so. ' ' 26° It is not hard to see how, given this precedent, the Court
was able to say that if Congress decides to regulate the 'total incidence'
of the interstate market for marijuana, it is able to regulate the wholly
interstate cultivation, possession, and use of marijuana. 26 1 This is
because Congress has the power to regulate the entire class, that is, the
market for marijuana, and even if Congress is not able to regulate this
intrastate activity, if it finds that to prevent the ultimate evil sought to be
protected against it must regulate this activity, it has the power to do
so.262
B. Does Gonzales v. Raich Clarify or FurtherConfuse Supreme Court
Commerce Clause Jurisprudence?
The Court could have used Raich to clarify the most recent and
significant Commerce Clause cases, Lopez and Morrison. However,
instead of further defining the inherent limits on the congressional
commerce power, thus reaffirming the shift in jurisprudence away from
255. Id.
256. This section of the CSA cites sources that evidence Congress's concern with the
ease that legitimate controlled substances may be diverted into illicit channels. 21 U.S.C. §
801(5).
257.
258.
259.
260.
261.
262.
Raich, 545 U.S. at 22.
402 U.S. 146 (1971).
Raich, 545 U.S. at 17 (emphasis added).
Id. (quoting Perez, 402 U.S. at 154-55).
Id. at 20-21.
Id.
THE EXPANDING SCOPE OF THE COMMERCE POWER
20071
a philosophy that allowed Congress to enact legislation under the
Commerce Clause virtually unfettered, the Court seems to have wiped
out any meaningful restrictions placed on the commerce power in Lopez
and Morrison, without overruling either case.263 In fact, the Court
disregarded the four-factor test to be considered when Congress is
regulating activity under the "substantial effects test" set forth 2in64
Morrison, although it does address 3 of the 4 factors implicitly.
Ostensibly, the Court recognized the precedential value of Lopez and
Morrison, while rebutting the respondent's argument that those cases are
controlling, by reasoning that the respondent's focus on these two cases
was "myopic" because it overlooked "the larger context of modern-era
,,265
The
Commerce Clause jurisprudence preserved by those cases.
Court did not support a broad reading of either Lopez or Morrison, and
instead distinguished those cases as facial challenges asserting that the
whole of a statutory scheme is unconstitutional. The respondents'
challenge in Raich was an "as applied" challenge: a challenge that
"ask[ed] [the Court] to excise individual applications of a concededly
valid statutory scheme. 266 Once the Court made this distinction, they
easily concluded that Congress has the authority to regulate the activity
in question because "[w]here the class of activities is regulated and that
class is within the reach of federal power, the courts have no power to
excise, as trivial, individual instances of the class. 267
The Court went on to distinguish Lopez and Morrison from Raich
for two additional reasons.268 First, the Court in Lopez found the GunFree School Zones Act an unconstitutional exercise of the commerce
power because it had nothing to do with commerce or any sort of
economic enterprise, and because it was not an essential part of a larger
regulation of economic activity that would be undercut unless the
intrastate activity were regulated.269 Here, the Court found that the CSA
is a larger regulation of economic activity that would be undercut if the
263.
See Raich, 545 U.S. at 3.
264.
Id.
265.
Id. at 23.
266.
Id.
267. Raich, 545 U.S. at 23 (internal quotations omitted). The Ninth Circuit seemingly
disposed of this argument, but the Court said that it made no difference that they were able to
isolate a separate and distinct class beyond the reach of federal power because the class
defined by the Ninth Circuit was an "essential part of the larger regulatory scheme. Id. at 25.
This reasoning seems circular, but given the precedent before the Court, the decision seems
sound.
268.
269.
Id. at 25-30.
Id. at 22-25.
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intrastate possession and use of marijuana went unregulated. 270 The
Congressional findings and the stated purpose of the CSA all indicate
that the statute would be undercut if regulation of intrastate possession
and use of marijuana were not allowed.2 7'
Second, the Court found that its reasoning did not conflict with the
holding of Morrison because the activities regulated by the CSA are
"quintessentially economic," where the activities at issue in Lopez and
72 Therefore,
Morrison were not. 272
while Morrison implies that wholly
intrastate, non-economic activity is not subject to Congressional
regulation under the Commerce Clause, this Court did not need to worry
about that implication because the activities regulated by the CSA were
economic, commercial activities by nature.273
The Court's reasoning fell short in this instance. While the CSA
may regulate "quintessentially economic" activities, the respondents
were not challenging the CSA as a whole, but only as applied to them.274
The Court seemed to lose sight of this while attempting to distinguish
Raich from Morrison. Even so, the Court could have easily gotten
around this "as applied" problem by applying the "bootstrap theory"
once again.
While Raich ostensibly squares its holding with Lopez and
Morrison, it seemingly reduces what seemed to be monumental shifts in
Commerce Clause jurisprudence to blips on the radar screen. The Court
seems to be re-establishing a pre-Lopez jurisprudence, that is, Congress
may regulate virtually any activity it sees fit under the Commerce
Clause.27 5
C. Comparing the Supreme Court Majority with the Ninth Circuit
Majority
The Ninth Circuit decision emphasized the definition of the activity
being regulated, defining the regulated activity so narrowly (i.e., "the
intrastate cultivation, possession, and use of marijuana for personal
medical purposes on the advice of a physician") to effectively remove it
from Congress's scope of commerce power.276 Defining the class of
270.
271.
272.
273.
274.
275.
276.
Raich, 545 U.S. at 24-25.
Id.
Id. at 25.
Id. at 25-26.
Raich, 545 U.S. at 47.
See, e.g., Perez v. United States, 402 U.S. 146 (1971).
Raich v. Ashcroft, 352 F.3d 1222, 1227-29 (9th Cir. 2003).
2007]
THE EXPANDING SCOPE OF THE COMMERCE POWER
activities in the Ninth Circuit was critical to square their holding with
Ninth Circuit precedent.277 There, the appellant's needed to distinguish
their regulated class of activities from drug trafficking, establishing a
separate and distinct class of activities. 278 Because the appellants were
able to distinguish their regulated activity, the Ninth Circuit was able to
find that wholly intrastate cultivation, possession, and use of medicinal
marijuana is a separate class of activities from drug trafficking and that,
as applied to appellants, the CSA is unconstitutional.27 9
However, the majority opinion in Raich did not bother itself with
defining exactly what the regulated activity was, presumably because it
was not concerned with Ninth Circuit precedent.280 The majority easily
dismissed this line of reasoning with the assertion that "the subdivided
class of activities defined by the Court of Appeals was an essential part
of the larger regulatory scheme. 281 The Court was able to reject any
argument that there is a separate and distinct class of activities,
reasoning that:
The differences between the members of a class so defined and the principal
traffickers in Schedule I substances might be sufficient to justify a policy
decision exempting the narrower class from the coverage of the CSA. The
question, however, is whether Congress' contrary policy judgment, i.e., its
within the larger
decision to include this narrower "class of activities"
282
regulatory scheme, was constitutionally deficient.
Based on the standards under which the Court was deciding Raich,
i.e., whether Congress had a rational basis for enacting the CSA, and
whether the Court may excise "trivial instances" of a larger regulatory
scheme, the Court was correct in finding that this "separate and distinct"
class of activities was of no consequence.28 3
277. Id. at 1228. The Ninth Circuit emphasized that "[w]here the class of activities is
regulated and that class is within the reach of federal power, the courts have no power to
excise, as trivial, individual instances of the class." Id. (emphasis in original) (quoting United
States v. Visman, 919 F.2d 1390, 1393 (9th Cir. 1990) (quoting Perez v. United States, 402
U.S. 146, 154 (1971))).
278. Raich, 352 F.3d at 1227-28.
279. Id. at 1227-29.
280. Gonzales v. Raich, 545 U.S. 1 (2005).
Id. at 27.
281.
282. Id. at 26.
Id.
283.
922
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[Vol. 25:887
D. The Impact of Gonzales v. Raich
Raich puts into question whether the restrictions on Congress's
ability to regulate intrastate, non-economic activity set forth in Lopez
and Morrison have been implicitly overruled. Concededly, the Morrison
opinion seems to misread Wickard in coming to the conclusion that
Congress may only regulate economic activities when regulating activity
that "substantially affects interstate commerce." 284 However, the
restrictions set forth in Lopez and Morrison on Congress's commerce
power make sense. While distinguishing between economic and noneconomic activity can be extremely difficult, and in many cases
ultimately unsatisfying, it is the only restriction left preventing Congress
from exercising unfettered regulatory power under the "substantial
effects test." If Congress were able to regulate any activity that
substantially affects interstate commerce, with the caveat that when "a
general regulatory statute bears a substantial relation to commerce, the
de minimis character of individual instances arising under that statute is
of no consequence," any meaningful restriction on the commerce power
will be obliterated.
It seems as if Raich substantially broadens Congress's ability to
regulate wholly intrastate, non-economic activity under the guise of the
commerce power.
If Congress can regulate wholly intrastate
cultivation/production, possession, and use of an item that is not
intended for sale, simply by making it part of a "general regulatory
statute," it is extremely difficult to identify an activity which Congress
may not regulate.
Another concern raised by the Raich decision is the Court's new
definition of "economic" activity.285 Prior to Raich the Court had never
sufficiently illuminated the distinction between economic and noneconomic activity, although it had left clues. In Raich the majority used
Webster's Dictionary (a 1966 version, nonetheless) to define economics
as "the production, distribution, and consumption of commodities. ,,286
Hopefully future Commerce Clause challenges will not rely on this
sweeping definition of economic activity, since, as Justice O'Connor
noted, it skirts the issue of defining "what is national and what is
local. 287 Justice O'Connor rightly noted that allowing Congress to
284.
285.
United States v. Morrison, 529 U.S. 598 (2000).
Raich, 545 U.S. at 25-26.
286. Id.
287.
Id. at 49 (quoting NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 31 (1937)).
20071
THE EXPANDING SCOPE OF THE COMMERCE POWER
regulate any private activity under this definition simply because it
affects the demand for market goods is to declare everything
economic. 288
To illustrate the sweeping effect the Raich decision has had already,
the United States v. Smith and United States v. Stewart decisions will be
analyzed in light of the Raich holding.
E. United States v. Smith & United States v. Stewart - The Effect of
Gonzales v. Raich on Intrastate Production,Possession,and Use of
Child Pornography& IntrastateProduction,Possessionand Use of
Homemade Machineguns
In United States v. Smith, the Eleventh Circuit Court of Appeals
initially held, inter alia, that defendant's purely intrastate, noncommercial production and possession of child pornography did not
substantially affect interstate commerce. 289 Therefore, it was not subject
to regulation enacted under the commerce power, even though the film,
photo paper, and film processor used to 29produce
the pictures allegedly
0
had once traveled in interstate commerce.
The Eleventh Circuit applied the "substantial effects test," also
291
using the four-factor considerations of Morrison.29
The court
concluded that there was nothing economic about the child-pornography
the government was attempting to regulate.292 Since the court found
there was nothing economic about the activity being regulated, it also
found that the Wickard aggregation principle did not apply.293
The Eleventh Circuit determined that the jurisdictional hook used in
the statute was utterly useless, since it encompassed "virtually every
case imaginable. 294 In addition, it found that, while the congressional
findings were helpful, they were not dispositive of constitutionality.2 95
288. Id. at 49-50.
289. United States v. Smith, 402 F.3d 1303, 1315 (11th Cir. 2005), cert. granted,
vacated, 545 U.S. 1125 (2005), affid, 459 F.3d 1276 (1 1th Cir. 2006), cert. denied, 127 S.Ct.
990 (2007).
290. Id. at 1309.
291.
Id. at 1316.
292. Id. at 1317.
293. United States v. Smith, 402 F.3d 1303, 1318 (11th Cir. 2005), cert. granted,
vacated, 545 U.S. 1125 (2005), affd, 459 F.3d 1276 (11 th Cir. 2006), cert. denied, 127 S.Ct.
990 (2007).
294. Id. at 132. The jurisdictional hook was pictures that are "produced using materials
that [are] mailed, shipped, or transported in interstate or foreign commerce." 18 U.S.C. §§
2251 (a), 2252A(a)(5)(B).
295. Smith, 402 F.3d at 1322.
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The nail in the coffin was the court's finding that the link between
Smith's activity and a substantial effect on interstate commerce was
exceedingly attenuated.2 90
In United States v. Stewart, the Ninth Circuit Court of Appeals
overturned the defendant's conviction for unlawful possession of a
machinegun.297 The court held, inter alia, that Congress could not,
under its Commerce Clause
power, prohibit mere possession of
298
homemade machineguns.
In Stewart, the court found that the defendant's activities were noneconomic, that there was no jurisdictional hook in the applicable statute,
and that there were no applicable congressional findings. 299 For all of
these reasons, the Ninth Circuit found that the defendant's activities
were not subject to regulation under the commerce power.3 °° Moreover,
much like Smith and Raich, the defendant produced and possessed the
material in question specifically for personal use. 30 1 The defendant's
only intention with regards to the five homemade machineguns was
personal use. 302 Any ties the activity at issue in Stewart had to interstate,
economic activity were extremely tenuous.
Both the Smith and Stewart holdings finding the respective statutes
at issue unconstitutional as applied were reversed on remand in light of
Raich.3 °3 The Smith court did not attempt to even analyze whether the
statutes at issue were constitutional as applied to the defendant,
summarily stating that Congress could have rationally concluded that
intrastate possession and production of child pornography could, in the
aggregate, undermine regulation of the interstate child pornography
market. 3° In the Stewart opinion on remand, however, Judge Kozinski
recited the analysis the Ninth Circuit went through the first time around,
once again finding that there was nothing economic about the
3 5
defendant's personal possession of homemade machineguns. 0
296. Id. at 1321.
297. United States v. Stewart, 348 F.3d 1132, 1133 (9th Cir. 2003), cert. granted,
vacated, 545 U.S. 1112 (2005), afftd, 451 F.3d 1071 (9th Cir. 2006).
298. Id. at 1140.
299. Id. at 1138-40.
300. Id. at 1140.
301. Stewart, 348 F.3d at 1138.
302. Idat 1136.
303. United States v. Smith, 402 F.3d 1303 (1 1th Cir. 2005), cert. granted, vacated, 545
U.S. 1125 (2005), afftd, 459 F.3d 1276 (1 1th Cir. 2006), cert. denied, 127 S.Ct. 990 (2007);
United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006).
304. Smith, 459 F.3d at 1285.
305. Stewart, 451 F.3d at 1073-77.
THE EXPANDING SCOPE OF THE COMMERCE POWER
2007]
Nevertheless, the court begrudgingly found that the facts were so similar
to Raich that the original convictions had to be upheld.3 °6
While child pornography is extremely morally reprehensible, mere
possession for personal use without distribution should not be regulated
The same goes for homemade
under the Commerce Power.30 7
machineguns. States can and should enact their own laws prohibiting
intrastate production and possession and use of child pornography and
homemade machineguns. Because of the holding in Raich, however,
states will not have the opportunity to regulate these activities. Going
forward, under the commerce power, Congress retains the ability to
regulate intrastate, non-economic activity. Raich makes it exceedingly
clear that Commerce Clause jurisprudence is shifting away from the
restrictive Lopez/Morrison view under the "substantial effects test,"
opting for a broader philosophy allowing Congress to regulate as it
wishes.30 8
V. CONCLUSION
The federal government's powers are limited; those powers not
specifically reserved in the Constitution for the Federal Government are
reserved to the States. 309 The Commerce Clause is an enumerated, yet
limited power that restricts Congress from regulating wholly intrastate,
non-economic activity that has no bearing on interstate commerce. 310
However, Raich allows Congress to regulate just that type of activity
through federal police powers that should be left to the States, putting
into question where exactly the line is drawn between intrastate activity
which Congress can and cannot regulate. 311 Furthermore, Raich puts
into question exactly what economic activity is, proposing a definition
that would include virtually all activity given the level of generality
contemplated.3 12
While the reasoning of Raich seems to stretch the limits of the
Commerce Clause, it might just be a return to pre-Lopez jurisprudence.
306.
Id. at 1078.
307. Susanna Frederick Fischer, Between Scylla and Charybdis: The Disagreement
Among the Federal Circuits Over Whether Federal Law Criminalizing the Intrastate
Possessionof Child PornographyViolates the Commerce Clause, 10 NEXUS 99, 101 (2005).
308. See Gonzales v. Raich, 545 U.S. 1 (2005).
309. CHEMERINSKY, supra note 33, at 230.
310.
Id.
311.
Raich, 545 U.S. at 25.
312.
Id.
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If so, the meaningful restrictions the Court placed on Congress's
commerce power under the "substantial effects test" in Lopez and
Morrison will be wiped out, and only cases with virtually the same facts
as those cases will be subject to their reasoning. Raich, most likely, is a
signal of the Court's commerce clause jurisprudence for years to come.
By Matthew Curtin*
* J.D./M.B.A. Quinnipiac University School of Law 2007; B.A. University of Connecticut
2003. The author thanks Professor William V. Dunlap for his thoughts and wisdom, Bethany
Forcucci for her guidance, and Kerry Keeney and Duke Curtin for their invaluable assistance
and support.