Gonzales v Raich

3 Key excerpts on "Gonzales v Raich"

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  eBook - PDF

  Cato Supreme Court Review, 2004-2005

  • Mark K. Moller(Author)
  • 2005(Publication Date)
  • Cato Institute

    (Publisher)

  Gonzales v. Raich : Wickard v. Filburn Displaced Douglas W. Kmiec* I. Introduction Over the last decade, the Supreme Court gave the impression that Congress’ power ‘‘[t]o regulate Commerce . . . among the several States’’ 1 was not unlimited. In its 1995 Lopez 2 and 2000 Morrison 3 decisions, the Court made an attempt to re-establish a link between the Constitution and modern ‘‘constitutional law.’’ The Court said ‘‘to here, but no further.’’ In Lopez , for example, Chief Justice William Rehnquist recurred to James Madison’s observation in Federalist No. 45 that ‘‘the powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in the State governments are numerous and indefinite.’’ 4 The powers remaining in the state governments are still indefinite, but after Gonzales v. Raich 5 they are also less numerous. Raich involved a challenge not to the federal Controlled Substances Act (CSA) 6 itself but to the application of the Act to those Californians who by state law 7 are authorized to use marijuana under a doctor’s care for relief of symptoms that do not respond to conventional medicines. 8 Even though the marijuana provided was grown entirely *Caruso Family Chair and Professor of Law, Pepperdine University 1 U.S. Const. art. I, § 8, cl. 3. 2 United States v. Lopez, 514 U.S. 549 (1995). 3 United States v. Morrison, 529 U.S. 598 (2000). 4 Lopez, 514 U.S. at 552 (quoting The Federalist No. 45, at 292–93 (James Madison) (Clinton Rossiter ed., 1961)). 5 Gonzales v. Raich, 125 S. Ct. 2195 (2005). 6 Controlled Substances Act, 21 U.S.C. § 801 et seq. (hereinafter ‘‘CSA’’). 7 The California law is not displaced or preempted by the decision in Raich , but the state law does not preclude federal prosecution. 8 Raich, 125 S. Ct. at 2219. 71

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  Regulating Vice

  Misguided Prohibitions and Realistic Controls

  • Jim Leitzel(Author)
  • 2007(Publication Date)
  • Cambridge University Press

    (Publisher)

  The extent to which a state can legalize medical marijuana in the face of a national ban presents an ongoing federalism dilemma. Can a person who has a marijuana prescription endorsed by her state of residence be prosecuted by federal author- ities for marijuana possession? The answer that the Supreme Court gave to this question in 2005, by a 6-3 margin, was “yes.” The Constitution’s commerce clause once again provides the framework for the case. The federal government lacks the power to ban marijuana directly, so it has chosen to institute its ban through the guise of regulating interstate com- merce. (Earlier federal controls on drugs were based on the taxation authority, but now they reside within the interstate commerce domain.) The main respon- dents in Gonzales v. Raich are two California women who also are longtime users of physician-recommended medical marijuana. They ingest locally cul- tivated marijuana, neither commercially traded nor transported across state borders. The patients contend, therefore, that the U.S. Congress’s commerce clause power does not extend to prohibiting possession of their noncommer- cial, noninterstate marijuana. Following a 1942 case concerned with acreage restrictions on wheat and on-farm consumption, the Gonzales v. Raich Court reiterates 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.” 31 29 545 U.S. 1 (2005). 30 See e.g., Shapiro (2001) and Joy, Watson, and Benson (1999). 31 Opinion of the court, Gonzales v. Raich (2005). Free Trade and Federalism 267 So the medical marijuana patients can only procure their medicine at the peril of prison.

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  eBook - ePub

  Cato Supreme Court Review, 2005-2006

  • Mark K. Moller(Author)
  • 2006(Publication Date)
  • Cato Institute

    (Publisher)

  27

  Raich undermined the Lopez-Morrison framework for limiting federal power in three separate ways. First, Raich adopts a definition of ‘‘economic’’ that is almost limitless, thereby ensuring that virtually any activity can be ‘‘aggregated’’ to produce the ‘‘substantial[] [e]ffect [on] interstate commerce’’ required to legitimate congressional regulation under Lopez and Morrison.28 According to the Raich majority, the word ‘‘economic’’ ‘‘refers to ‘the production, distribution, and consumption of commodities.’ ’’29 Almost any human activity involves the ‘‘distribution’’ or ‘‘consumption’’ of a commodity. Even having dinner at home surely involves the ‘‘consumption’’ of the commodity of food, while giving a birthday present to a friend entails commodity ‘‘distribution.’’

  Raich also makes it easier for Congress to impose controls on even ‘‘noneconomic’’ activity by claiming that it is part of a broader ‘‘regulatory scheme.’’30 Here the Court greatly expanded Lopez’s statement that Congress can regulate noneconomic activity if it is an ‘‘essential part of a larger regulation of economic activity.’’31 The Raich majority ignored the Lopez requirement that the regulation of the noneconomic activity must be an ‘‘ essential’’ part of a ‘‘regulatory scheme’’ intended to control interstate ‘‘economic activity.’’32 If ‘‘essentiality’’ is no longer required, the regulation of almost any activity can be claimed to be part of a broader regulatory scheme. Indeed, the government could satisfy the requirement by claiming that any new regulation of noneconomic activity is just an addition to one of the numerous regulatory programs already in existence.33

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