Marijuana and the Commerce Clause

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich since the Supreme Court came to the opposite conclusion. States continue to legalize marijuana, for medicinal purposes or otherwise, despite Supreme Court affirmation of Congressional criminalization. Is this a state or federal matter?

Pondering Judicial Ideology

Here is an exercise regarding judicial decision-making and ideology.  The Commerce Clause in the Constitution grants the federal government the power to “regulate commerce among the several states….”  In a series of decisions from the New Deal in the 1930’s to the Civil Rights era of the early 1960’s, the Supreme Court has interpreted the Commerce Clause power so as to confer a very expansive power on Congress to regulate even very local activity.

However, in U.S. v. Lopez (1995) the Supreme Court took a very restrictive view of the Commerce Clause. Putting a halt to 50 years of expansive Commerce Clause interpretations, the court struck down the federal government’s attempt to ban guns from schools.  The court said:

To uphold the government’s contention here, we would have to pile inference upon inference in a manner that would bid fair to convert Congressional authority under the Commerce Clause to a general police power of the sort retained by the states. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in those opinions has suggested the possibility of further expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.  This we are unwilling to do.

Ten years later, in Gonzales v. Raich, the same court (with no turnover in personnel) took a very expansionist view of the Commerce Clause in upholding the power of the federal government to regulate marijuana sale, use and possession, even in the face of legalization by the State of California and even applying to a plaintiff who grew her own medicinal marijuana in her own house. The Court relied heavily on the 1942 decision in Wickard v. Filburn where the federal government was allowed to control the quantity of wheat grown by farmers – even wheat that was sewn, harvested and used on the farmer’s own 11 acres. This is one of the decisions that was soundly rejected in Lopez.  Indeed, in oral argument in Raich, Justice Scalia said, “I always used to laugh at Wickard.” Yet, in his concurring opinion, he relies upon it.

Let’s take a look at the votes in each case:

Lopez:

5 justices in favor of restricted federal power: Kennedy, O’Connor, Rhenquist, Scalia and Thomas

4 justices in favor of more expansive power: Breyer, Ginsburg, Stevens, Souter

Raich:

3 justices in favor of restricted federal power: O’Connor, Rhenquist, Thomas

6 justices in favor of more expansive power: Breyer, Ginsburg, Kennedy, Scalia, Stevens and Souter

So, what’s going on here? Can the two decisions be reconciled on judicial ideology of expansive vs. restrictive federal powers?  Or is there a social conservativism expressed by the Kennedy and Scalia switch when it comes to smoking pot?  If this is true, is it possible that a judge’s social preferences may color his or her law-making? Is “the rule of law” shaped by a judge’s law of social rules? 

More Medical Marijuana Despite Federal Prohibition

As of October 1, 2012, Connecticut has become the latest state to thumb its nose at the federal government and pass a medical marijuana statute. That makes 18 states plus Washington, D.C. that have adopted statutes allowing possession and use of marijuana in limited medical circumstances despite the fact that such action is illegal under federal law.  After this November's election, half of all the states may be in conflict with federal law as seven states have medical marijuana ballot questions pending. Students may see that an inevitable clash of government powers looms and look to the Supreme Court for a solution.  The problem is that the court has already ruled in favor of the federal government in Gonzales v. Raich.  So what happens when the states act in contravention to federal law?  Isn't federal law supreme when there is a conflict? The last time the states refused to accept a Supreme Court decision (Brown v. Brd. of Education) there were riots in the streets and the US Army had to be called out.  Certainly, this conflict is not likely to result in that kind of drama. But something has to give at some point.

In November, Colorado (Oregon and Washington, also) faces a ballot measure legalizing the sale and possession of small amounts of marijuana - without medical need. Legal medical marijuana dispensaries there are concerned that passage of the law will bring unwanted federal enforcement. Ultimately this legal dilemma cries out for a political solution.  This is beyond the powers of the courts.

Featured Website: Exploring Constitutional Law

The website, Exploring Constitutional Law is maintained by Doug Linder at University of Missouri- Kansas City School of Law.  Prof. Linder has compiled material on a wide range of topics.  In each instance, he has gathered case summaries and background information to assist the learning process.  Click on the images below to sample some of the topics explored. But also take the time to explore this website for you own classroom needs.

Thanks to Prof. Lender for sharing this fine classroom resource by posting it on the web.

Click on the image below of Estelle Griswold, plaintiff in the landmark case of Griswold v. Connecticut to explore the website section on the right of privacy. (source of image: http://www.abajournal.com/magazine/article/june_7_1965_griswold_v._connecticut_decided/)



Click on the image below of Susette Kelo, plaintiff in the landmark case of Kelo v. New London to explore the website section on the takings clause. (source of image: http://www.boston.com/ae/books/articles/2009/02/01/stealing_home/)



Click on the image below of Thomas Edison High School in San Antonio, Texas, the locus of the events leading to the landmark case of U.S. v Lopez to explore the website section on the Federal Power to Regulate Commerce. (source of image: http://saisd.net/schools/edison003/)

Guest Blogger: Henry Lowenstein - Gibbons v Ogden: Steamships, Slaves and Supremacy

Henry Lowenstein from Coastal Carolina University shares the following:

Every term I assign 4 cases for my Legal Environment of Business class for students to read the majority opinion and write a 2 page mini-brief summary.  The first one is usually a Commerce Clause case since we start the course on foundations of the law.   This year I decided to use the old war horse, Gibbons v. Ogden.

In perusing the internet I found this wonderful YouTube video which is a 35 minute dramatization of the case done by the Judicial Conference of the United States in 1977.  (The late actor E.G. Marshall introduces it).  It can be a little dry at times but I sent it to my students.

The students who took the time to watch it say they were fascinated, particularly my African-American students who had no idea of the critical linkage between the Marshall Court making this decision and the post hysteria and unconstitutional law enactments here in South Carolina following the Denmark Vesey Slave Conspiracy at that time.  Below is what I sent my students:

Dear Students:

I have heard from some of you working your way through the Supreme Court decision in the case of Gibbons v. Ogden, your first case assignment coming up shortly.

For those of you interested I draw your attention to an outstanding 35 minutes dramatization of this case on YouTube at the following site:  http://www.youtube.com/watch?v=QGTkRP4v8tM

This program, commissioned by the Judicial Conference of the United States in 1977, covers the issues and deliberations Chief Justice John Marshall and the then 7 member justices faced and how they ultimately crafted the unanimous decision you are reading.   Note as you watch it, the similarity between the issues and concerns then with what you hear in today's public debate on the role of the Federal government and its regulation of commerce.

What you may find more fascinating, is that the Court took this case as a legal linkage in dealing with events of the time happening in Charleston, South Carolina; the Denmark Vesey Slave Revolt Conspiracy of 1822 and its aftermath. That event led to a cruel and inflexible state law governing seamen passed by South Carolina which many felt impeded commerce.  One of the Justices, sitting as presiding Federal Judge over the region declared the South Carolina law unconstitutional. This helped push Chief Justice Marshall and the full Supreme Court to strongly affirm Federal supremacy over interstate commerce in Gibbons v. Ogden to deal with both situations.

I hope you will find this helpful, interesting and the acting superb.

Henry Lowenstein, PhD
Professor of Management and Law 

Featured Case: Gonzales v. Raich

Angel Raich and Diane Monson, suffering from serious medical ailments, were being treated with marijuana under the California Compassionate Use Act.  Monson grew her own marijuana.  Raich relied on two local men to raise marijuana for her. The plaintiffs actions were legal under California law but ostensibly illegal under federal law. The plaintiffs instituted an action for declaratory judgment against the federal governmnet seeking a ruling that that federal regulation exceeded the Commerce Clause power. The Supreme Court ruled in favor of the federal government relying on Wickard v. Filburn analysis:  "Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

Beyond the obvious Commerce Clause / Enumerated Powers / Federal v. State Power issues, I think that there are 4 other really interesting aspects of this decision that can be explored in class:

1. Ten years before, the Supreme Court's decision in US v. Lopez purported to draw the line for a more limited use of the commerce clause power.
"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."
What are we to make of the Commerce Clause power now?

2.  Justice Scalia (voting with the majority for limited federal power in Lopez) filed a concurrence in Raich.
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
This is undoubtedly a broad view of federal regulatory power.  All this despite Scalia admitting in oral argument, "I used to laugh at Wickard."

3. At the time of the Raich decision, 9 states had medicical marijuana statutes. Fifteen states plus DC now have such laws and 10 more states have legislation under consideration. Are the states thumbing their noses at the feds?  Do the feds care? After announcing that Federal resources would not be used to purusue marijuana use where it was legalized by states, the DOJ seems to be rethinking its position.

4. What do we do with other activities associated with marijuana use - like advertising. Will the FCC take action against broadcasters who run ads for dispensaries? Would a new executive administration be more aggressive in enforcement of federal law?

A variety of images are available at Voices of American Law site.  Plaintiffs Monson and Raich:

Featured Case: Heart of Atlanta Motel v. US and Katzenbach v. McClung

The US Supreme Court decisions in these iconic Civil Rights Act/Commerce Clause cases are readily available on line: Heart of Atlanta Motel; Katzenbach.  I try to personalize these cases by providing some photos or articles about the people involved in the cases.  I think that it is important for students to understand that law is more than just words in a book.  Law involves the stories of real people, the way they act and react and how their lives were impacted by the legal system.  This site has pictures of the Heart of Atlanta Motel, including a larger version of the one reproduced below. Below are a couple of pictures of Ollie's Barbeque, the Birmingham, AL. restaurant that was the subject of Katzenbach.  Ollie's restaurant is out of business, but you can still buy some of Ollie's barbecue sauce.

Commerce Clause - Business Regulation by the National Government

This video sets up the facts of the depression era U.S. prosecution of Fred Perkins, the owner of a York, PA battery company for failing to meet NIRA minimum wage standards.  Perkins' case never made it to the Supreme Court, but the court did hear U.S. v Darby based on similar facts.

Commerce Clause - the 1938 View on Marijuana Regulation

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich.