Medical marijuana is back in the news with its intriguing constitutional law issues. The Supreme Court's 2005 decision in Gonzales v. Raich extended the reach of Congress' powers under the Commerce Clause to criminalize a small home-grown marijuana patch in California serving a single patient.

The case, which was thereupon remanded to the U.S. Court of Appeals for the Ninth Circuit, spawned four separate opinions with unpredictable alliances and a result that left open arguments based upon the patient's "fundamental right to life."

That new question is now before the Ninth Circuit Court, which heard oral argument on March 27, 2006.

'Gonzales v. Raich'

Angel Raich, accused of violating the federal Controlled Substances Act (CSA), is the California marijuana patient and litigant in both the original 2005 Supreme Court case and the present appeal. She takes marijuana on doctor's orders from plants grown locally supplied to her by caregivers.

This treatment would have been legal under California law pursuant to a 1996 referendum permitting the use of marijuana for prescribed and regulated medical purposes. However, the Department of Justice successfully argued before the Supreme Court that Congress was authorized to pass the CSA pursuant to the Constitution's Commerce Clause ("Congress shall have power . . . to regulate commerce . . . among the several states") and that under the Supremacy Clause (" . . . the laws of the United States . . . shall be the supreme law of the land.") Congress pre-empted the field of drug regulation from the states. The Court agreed in June 2005 and invalidated the California law on those Commerce Clause grounds.

The Court line-up on its face is surprising. The vote was 6-3 with Justices John Paul Stevens (who wrote the majority opinion), David Souter, Ruth Bader Ginsburg, Stephen Breyer, Anthony Kennedy and Antonin Scalia voting to invalidate the California law with then-Chief Justice William Rehnquist and Justice Clarence Thomas and then-Justice Sandra Day O'Connor voting to uphold the California statute. The obvious question is why liberal justices who would tend to support such liberalization of drug laws voted against the California statute while conservatives voted to permit such "liberal" marijuana use. A further surprise was Justice Scalia's vote to invalidate the California statute in spite of his long advocacy of state's rights in the face of congressional supremacy. Deepening the plot is Justice Scalia's separate opinion on an apparently trivial nuance — focusing on the power of Congress to make laws "necessary and proper" to carry out its enumerated powers (which include the Commerce Clause), but not conceding the applicability of the Commerce Clause. Adding to the irony is the present joining of forces between the liberal groups urging legalization of medical marijuana and the "right to life" community to whom Mrs. Raich's new argument of a "fundamental right to life" is addressed. Unraveling these ironies and riddles is a constitutional lawyer's favorite pastime.

The Liberal Bloc

Explaining the votes of the liberal bloc on the Supreme Court is not difficult for anyone who has followed the ideological battles on the Court over the past 70 years. The Commerce Clause, which was originally written in order to prevent trade wars between the states, became the lever for much of the liberal legislation of the Roosevelt era and the huge expansion of national social and civil rights legislation that followed. The Commerce Clause now covers minute areas of daily life (food, wages and housing among others) which the Court has found over the years to "affect" or "substantially affect" interstate commerce. Thus, the "liberal" majority in Raich relied heavily on an old Commerce Clause standby, Wickard v. Filburn, a 1941 case in which grain produced by a farmer solely for his family's use was held to fall under the New Deal's Agricultural Adjustment Act as having a substantial effect on interstate commerce because total wheat production, including home-grown wheat, was deemed to be an element in wheat prices generally.

As Justice Kennedy observed in connection with the Commerce Clause, "[t]he Federal Government undertakes activities today that would have been unimaginable to the Framers." By the same token, the Commerce Clause became a lightning rod for conservatives opposed to far-reaching social programs by the federal government which, they argued, usurped traditionally local powers.

Then suddenly in 1994, for the first time in 60 years, the Court in a 5-4 decision written by then-Chief Justice Rehnquist held an act of Congress based on the Commerce Clause unconstitutional. In United States v. Lopez, the Court invalidated a federal statute by which Congress (at the behest of many state attorneys general) made the possession of weapons near schools a federal crime on the ground that such violence arose as an outgrowth of the interstate traffic in guns and that school violence affected educational standards which in turn affected interstate commerce. The Lopez case was followed in 2000 by United States v. Morrison, which dealt with a law passed by Congress bringing domestic abuse under federal control as having national ramifications, which the Court also invalidated in a 5-4 decision. In both of these cases, the Court found that Congress had exceeded its Commerce Clause powers by legislating in essentially local areas which did not "substantially affect" interstate commerce.

Not 'Proceeding Further'

But Lopez went even further: Chief Justice Rehnquist reviewed the cases expanding the Commerce Clause starting with an 1823 decision by Chief Justice John Marshall and drew a clear line in the sand — he simply said that the Commerce Clause had gone as far as it could go ("We decline to proceed any further").

The liberal bloc's historic allegiance to the Commerce Clause produced strong dissents in both of these cases accusing the Court of first, turning its back on two centuries of national growth through use of the Commerce Clause and, second, for lack of "judicial restraint" in substituting its judgment for that of Congress which had a "rational basis" for finding that gun violence had a substantial effect on interstate commerce. Justice Stevens attacked "the radical character of the Court's holding and its kinship with the discredited pre-Depression version of [conservative Court rulings prior to 1937]." These dissents were countered by an equally emphatic concurring opinion by Justice Thomas in which he stated that "[a]t an appropriate juncture, I think we must modify our Commerce Clause jurisprudence," signifying an all-out attack on the reach of the Commerce Clause into American life.

The battle lines on this issue reach deeply into historic American political philosophy — the one side struggling to preserve the Commerce Clause as the basis for (presumably liberal) national standards for social legislation and the other fighting for (presumably conservative) state's rights and local governance of local relationships. For present purposes in reviewing the medical marijuana cases, this controversy explains the liberal bloc's support of the Commerce Clause at the expense of California's "compassionate" approach to marijuana use.

But why did Justice Scalia join the liberal bloc when he had consistently urged the Court's deference to local laws (" . . . this Court should not substitute its own 'inevitably subjective judgment' . . . for the judgments of the Nation's democratically elected legislatures") and especially in view of his strong support for Lopez and Morrison. This question is particularly intriguing when considered against the strong language used in the medical marijuana case by his erstwhile allies Justice Thomas ("If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything") and Justice O'Connor ("If the Court always defers to Congress as it does today, little may be left of enumerated powers").

Necessary and Proper Clause

Justice Scalia answered this riddle by making clear in a separate concurring opinion that he was not relying on the Commerce Clause to reach his decision. Instead, he based his concurrence on the "Necessary and Proper" clause of the Constitution, i.e., the provision that Congress has the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers . . . ." While the "necessary and proper" clause seems inapplicable unless the Commerce Clause also applies, Justice Scalia made his nuanced point that since national drug enforcement is clearly within congressional power, it may enforce that power through "necessary and proper" laws without implying an expansion of the Commerce Clause. In addition, Justice Stevens' opinion had used the word "evolving" law to describe the Commerce Clause, a word which is not in Justice Scalia's dictionary since he believes that the Court must begin any constitutional review with the Constitution as originally written. An "evolving" Constitution in his view is a subjective one.

One would also suspect that Justice Scalia saw the California law as something of a sham — a cosmetic law in a state of, in his mind, questionable moral standards which, in his opinion, would simply create a loophole for recreational drug use. Justice Scalia has expressed himself too often — sotto voce it is true — on American morality in general to avoid the suspicion that his surprising vote in Raich has more to do with strengthening the Controlled Substances Act than concerns about the reach of the Commerce Clause.

Mrs. Raich has now renewed her efforts to use marijuana for her own medical purposes on the ground that "Americans have a fundamental right to marijuana as a vehicle to help them stay alive and ease pain." In news releases, she has characterized her continued litigation as a "right to life" case and, indeed, the Supreme Court left open her position based on both the Due Process Clause of the Fifth Amendment and the potentially explosive language of the Ninth Amendment (" . . . the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people") in which Ninth Amendment argument she is joined by a vigorous amicus brief filed by the Cato Institute.


Whether this case reaches the Supreme Court again or not, the rhetoric surrounding the underlying case and the significance of the Commerce Clause to the development of American constitutional law invite predictions about the direction of the new Roberts Court. Does Gonzales v. Raich mark a turn in the anti-Commerce Clause tide of Lopez and Morrison or will the new Court follow Justice Thomas' suggestion that all of our previous Commerce Clause jurisprudence be reviewed in order to roll back a significant part of its expansion? Two of the three dissenting judges in Raich are no longer on the Court while all of the majority six are still present but, of the six Justices making up the Raich majority, two are Justices Kennedy and Scalia both of whom supported both Lopez and Morrison. In any event, the Commerce Clause is still in play and it is fair to say that its interpretation by the new Court will be central to the future of the Commerce Clause or, in its new incarnation as a due process/Ninth Amendment rights case, as a possible test for Roe v Wade.