The case that made federalism go up in smoke

In Dissent is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country.

I. Stand down

In August 2002, federal Drug Enforcement Administration agents and Butte County Sheriff’s Department officers pulled up to a home in rural Northern California to argue over six marijuana plants in Diane Monson’s backyard. Monson had tried pharmaceuticals for her chronic back pain but found they either didn’t work or caused unwanted effects. So, pursuant to a licensed physician’s recommendation, she had turned to medical cannabis. The sheriff’s officers determined that her plants were fully legal under California’s Compassionate Use Act. Federal agents, however, determined that the plants were a Schedule I drug under the Controlled Substances Act – right alongside heroin – and had to be destroyed.

The Butte County district attorney called the U.S. attorney and told him that his agents should back off. Seizing Monson’s plants, he said, would be “wrong-headed, stupid, and high-handed.” But after a three-hour standoff, it was the local officers who finally gave in. The DEA agents hacked down Monson’s plants while she stood there reading the text of California’s Compassionate Use Act out loud.

This faceoff between state and federal authority would eventually culminate in Gonzales v. Raich, a case that considered not just medical cannabis but the reach of federal power. One justice warned in dissent that if Congress can regulate a woman’s local consumption of medical marijuana, then “the Federal Government is no longer one of limited and enumerated powers.” A significant constitutional protection for individual liberty – the delineation between federal and local power – would be obliterated.

II. Compassionate use

Angel Raich was a mother of two who suffered from an array of life-threatening medical conditions, including an inoperable brain tumor and wasting syndrome – a condition in which someone loses more than 10% of their body weight. She used medical cannabis as a way of getting rid of her persistent nausea, regaining her appetite, and easing her excruciating pain. She found that when she used it, her symptoms waned. When she stopped, they returned. A physician testified that if she stopped using it altogether, she “could very well” die.

While Monson grew her six plants in her backyard, two caregivers cultivated marijuana for Raich for free. Both women’s activities were legal under California’s Compassionate Use Act, approved by voters in 1996. But not under the federal Controlled Substances Act.

After DEA agents destroyed Monson’s plants in 2002, she and Raich brought a lawsuit, arguing that they feared DEA agents would target them in the future and that Congress had no constitutional authority to regulate their purely local activities, which were legal under state law.

Specifically, Congress claimed authority over Raich and Monson’s activities based on the interstate commerce clause – which gives Congress the power to regulate “commerce … among the several states.” The argument was that even though such local, non-commercial activity was not itself commerce, Congress needed to reach medical cannabis to prevent it from reaching the interstate black market, which Congress could regulate.

The commerce clause was one of the chief reasons the Constitution was drafted and ratified in the first place. Under the Articles of Confederation, states had passed trade barriers that discriminated against other states and threatened national trade, and the Confederation Congress had no power to stop it. Recognizing that, among other issues, economic warfare would be destructive to the nascent nation, a group of delegates called for a Constitutional Convention.

For the republic’s first century, the commerce clause was used mainly to prevent states from erecting protectionist trade barriers and to preserve the free flow of commerce across state lines. In 1824, the Supreme Court interpreted the clause as narrowly covering commercial exchanges across state lines and interstate navigation. But that understanding and use was upended during the New Deal, when President Franklin Delano Roosevelt sought to stave off the Great Depression by pressing for broader federal involvement in the national economy. Most famously, the court ruled in Wickard v. Filburn in 1942 that wheat grown by a farmer to make bread and feed his animals could be regulated by Congress because, if enough farmers did the same thing, it would affect prices on the national wheat market. The upshot was that Congress now retained not only the power to regulate interstate commerce itself, but also economic activities that have a substantial effect on interstate commerce.

This was an expansive interpretation. But at least by the time that Raich and Monson brought their lawsuit, the court had refused to go any further. And, in fact, they had reaffirmed some limits on the commerce clause’s reach. In 1995, the Supreme Court ruled in United States v. Lopez that a federal ban on possessing a firearm within 1,000 feet of a school exceeded Congress’ authority. The government had argued that the presence of firearms near schools might increase violent crime, which in turn might dissuade people from traveling to unsafe areas or harm the educational process, leading to a less productive economy. Chief Justice William Rehnquist, joined by Justices Antonin Scalia, Anthony Kennedy, Sandra Day O’Connor, and Clarence Thomas ruled that while Congress could regulate economic activity that (in the aggregate) substantially affects interstate commerce, it could not reach wholly noneconomic activity, like possessing a gun.

Similarly, in 2000, in United States v. Morrison the same five justices invalidated the Violence Against Women Act, which had given victims of gender-motivated abuse a cause of action in federal court. The government had argued that such violence deterred women from traveling across state lines, which had national economic effects, like diminishing national productivity and increasing medical costs. The court rejected this argument, first because sexual violence is noneconomic and second, because the chain of reasoning was too tangential to interstate commerce.

So when the attorneys for Raich and Monson, including law professor Randy E. Barnett, walked into court challenging Congress’ authority to regulate their wholly in-state and noneconomic activity, they felt they were on solid ground.

Barnett began his oral argument at the Supreme Court by stating that if the justices accepted the government’s line of reasoning, the case would “replace Wickard v. Filburn as the most far-reaching example of Commerce Clause authority over interstate activity.” And, according to his biography, he believed that he had a shot.

III. Tomato Kids

At oral argument, the government was represented by U.S. Solicitor General Paul Clement. He agreed that Raich and Monson’s possession of marijuana was not economic. Still, their activity was an “essential part of a larger regulatory scheme” that would be undercut if Congress could not prohibit it, he contended. Because marijuana is a fungible good, it will necessarily find its way to the interstate market, which Congress had power to ban. And even though California heavily regulated medical cannabis and prohibited it from reaching the interstate market, there was no reason to assume that California would “have some sort of almost unnatural ability to keep one part of a fungible national drug market separate.”

It became clear during oral argument that the plaintiffs had neither Scalia nor Kennedy, who had been essential to forming a majority in Lopez and Morrison, on their side. Kennedy could, at times, be a reliable vote for limited federal power and a poetic defender of individual liberty. Here, not so much. Notably, he had been nominated to the Supreme Court by President Ronald Reagan after Judge Douglas Ginsburg’s nomination failed. Ginsburg, it was revealed, had smoked marijuana as a professor at Harvard, and that made him an unideal candidate for a president promising a War on Drugs.

Scalia, too, was unsympathetic. At one point, when Barnett argued that the lawsuit was limited to people who grow medical marijuana for themselves or have a caretaker do it for them, Scalia responded, “Gee, what basis … is there to draw [the case] that narrowly? I mean, I guess … we could [limit the case to] people whose last name begins with a Z.” He suggested that this was an easier case than Wickard, because the argument in that case was merely that the farmer’s consumption of wheat would affect national prices, whereas the government’s argument here was that the cannabis itself would end up in interstate commerce.

Justice Stephen Breyer, who had voted against the plaintiffs in Lopez and Morrison, offered a unique hypothetical: What power would Congress have over someone who grows “tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston?”

Barnett’s answer was that Congress’ regulation of local conduct must be essential to the regulatory scheme. Here, it was not, because the activity was already regulated by California.

To this, Breyer replied, “This is a new framework, I take it, and it’s very interesting [because] on your framework, Lopez should have come out my way.”

Barnett responded “Justice Breyer, that’s the reason why that exception has to be narrowly treated, so it doesn’t reach your result.”

IV. The majority

The court ruled 6-3 in the government’s favor. Justice John Paul Stevens wrote the majority opinion, joined by Justices David Souter, Ruth Bader Ginsburg, Breyer, Scalia, and Kennedy.

The majority reasoned that, even though (as in Lopez and Morrison) the plaintiffs were engaged in noneconomic activity, Congress’ regulation of in-state medical cannabis was necessary to preserve its ban on the interstate cannabis market. The fact that “the regulation ensnare[d] some purely intrastate activity” was “of no moment.” The majority deferred to Congress’ assumption that legal medical marijuana would find its way into the black market.

Scalia wrote separately to explain what he thought was a more “nuanced” view: He grounded Congress’ reach in the necessary and proper clause (which enables Congress to “enact laws necessary and proper for the regulation of interstate commerce”), rather than the commerce clause alone, and he emphasized that some limits remain.

This ended the hopes of those who believed, based on Lopez and Morrison, that the court might restore limits on the commerce clause. Law professor Ilya Somin called it “a major – possibly even terminal – setback” for efforts to rein in the Congress’s commerce power. Federalism, he said, had been “a casualty of the war on drugs.”

V. The dissents

Rehnquist, who had been too ill to attend oral argument, dissented but wrote no opinion of his own, while O’Connor and Thomas each wrote a dissent.

In O’Connor’s view, “allowing Congress” to “package[e] regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause.” The majority had reduced Lopez to “nothing more than a drafting guide.” This was because the broader the federal regulatory scheme that Congress creates, the more local activity it can sweep within its purview – especially given the court’s refusal to police whether regulating the local activity was actually necessary. “To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic.”

Thomas’ dissent went even further. He not only would have ruled for the plaintiffs; he would have walked back the court’s precedents. Thomas began with an originalist interpretation of the word “commerce,” determining that it didn’t refer to all “productive activities like manufacturing and agriculture” but rather was limited to “selling, buying, and bartering, as well as transporting for these purposes,” which did not include Monson and Raich’s activities. The necessary and proper clause, he said, could not bridge the gap. Congress had “presented no evidence in support of its conclusions” that it needed to regulate local growers or users. The court was therefore allowing Congress to “define the scope of its own power merely by declaring the necessity of its enactments.” According to Thomas, “the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. … One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

In contrast to Breyer’s tomato-children hypothetical, Thomas ended with hypotheticals of his own: “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined.’”

VI. Postscript

What happened to the key players?

Randy Barnett would become the chief architect of the commerce clause challenge to Obamacare’s mandate that individuals maintain a minimum level of health insurance. Ironically, Clement would go on to argue the case, except against the government rather than on behalf of it. The pair were able to secure a win for the commerce clause (though the mandate was upheld as a valid tax). Five justices, including Scalia, Kennedy, and Thomas, ruled that Congress’ commerce power does not extend to “inactivity” – that is, failing to secure health insurance. Most commerce clause challenges have since fizzled, with pushback against federal overreach shifting to lawsuits against agencies, spending power challenges, or anti-commandeering lawsuits (challenges to the federal government forcing states to enforce its laws).

After losing in the Supreme Court, Raich tried again in the U.S. Court of Appeals for the 9th Circuit, arguing that she had a constitutional right to life and that her medical necessity should override federal drug laws. She lost again, though the court said that she might have a defense in the face of a prosecution. Raich remarked that “I’m sure not going to let them kill me,” and lamented that she would have to “get busted in order to try to save [her] life.” Marijuana is now widely legalized at the state level, though attempts to re-reclassify it as a Class II or III drug at the federal level have stalled.

Thomas has continued to be a consistent voice for the original meaning of the commerce clause. In the 2016 case of Taylor v. United States, eight justices leaned on Raich in ruling that the federal government does not have to prove that a defendant’s robbery affects interstate commerce as long as the affected activity does so in the aggregate. Thomas alone dissented. And in 2021, Thomas wrote a statement respecting the denial of review in Standing Akimbo, LLC v. United States, saying the federal marijuana ban has become “contradictory and unstable,” and suggesting that what Raich upheld “may no longer be necessary or proper” given that Congress had switched to a “half-in, half-out” approach to regulating marijuana. His dissent in Raich remains the clearest articulation of the original meaning of the commerce clause, and of the importance of a delineation between the separation of powers between Congress and the states.