Sunday, December 19, 2004

Raich Medical Marijuana Case: New Deal Wheat Farmer Meets New Millennium Weed Farmer - Scalia Laughed at Wickard v. Fillburn, but now?

Last week the oral argument transcript (pdf) for Ashcroft v. Raich (03-1454, the California medical marijuana case) was posted on the Supreme Court's website. The issue in Raich is whether the federal Controlled Substances Act, 21 U.S.C. Section 801 ,et seq., exceeds Congress’ power under the Constitution's Commerce Clause (Art. 1, Sec. 8, "Congress shall have Power . . . to regulate Commerce . . . among the several States") as applied to the intrastate possession and growing of marijuana for personal medical use.

Raich oral arguments were held on November 29, 2004. Justice Scalia asked Solicitor General Paul Clement (Transcript, at 6-7) if he thought is was "strange" that the feds are making arguments based, in part, on cases like Wickard v. Fillburn, 317 U.S. 111 (1942). Wickard upheld a federal regulatory program to encourage interstate wheat commerce, but surely the government in Raich isn't trying to encourage interstate pot trade?

Some background on Supreme Court Commerce Clause cases is in order here. As mentioned above, the Constitution's Commerce Clause gives Congress power to regulate interstate commerce. But powers not expressly granted to Congress, are reserved for the States under the 10th Amendment of the Constitution. A major tenet of the U.S. federalist system is that States have some sovereign power to regulate local matters, whereas the federal government has specific powers to deal with matters of national concern. The question then arises: does Congress have power to regulate intrastate commercial activities, or is this a matter left to individual States? Well, the Court has held that some purely intrastate local economic activity can, in the aggregate, affect interstate commerce.

Back to Wickard v. Fillburn. Wickard extended Congress' Commerce Clause power by holding that wheat grown by farmers in a state for consumption on a grower's farm, had an aggregate economic effect on interstate wheat commerce. All the farmers using home grown wheat would, presumably, buy less wheat through interstate commercial channels. So, Congress could regulate even home grown wheat that never actually entered the interstate market for wheat. The poor farmer in Wickard violated a federal wheat marketing quota by growing his own.

Wickard seems like a tortured analysis of Congress' Commerce Clause power, but remember the times - the Great Depression, FDR, the WPA. If Nino had been on the Court in 1942, he might have argued that the original meaning of the Commerce Clause wouldn't support such federal micro-management of intrastate affairs. While Justice Scalia may argue against the "Living Constitution," the reality is different. The Court's holdings are influenced by political and social movements, like it or not. The Commerce Clause was broadly interpreted in cases such as Katzenbach v. McClung, 379 U.S. 294 (1964)(holding restaurant serving only locals could be regulated under federal act because it bought food through interstate supply channels), allowing Congress to implement the policy goals of the Civil Rights Act of 1964.

Recently, however, the Rehnquist Court has been willing to "just say no" to expansive Congressional Commerce Clause power. For example, in U.S. v. Lopez, 514 U.S. 549 (1995) the Court held that Congress had exceeded its Commerce Clause authority with the Gun-Free School Zones Act. Writing for the majority, CJ Rehnquist reasoned that "the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Anyway, enough digression about the Commerce Clause. Back to Scalia in Raich

Nino had the several questions for Petitioners' counsel, Boston U Law Professor Randy Barnett, author of the well-researched, libertarian and originalist, Restoring the Lost Constitution: the Presumption of Liberty . (And blogger at The Volokh Conspiracy.) Scalia's first questions seemed to support the scope of Congress' power under the Controlled Substances Act. (See Transcript at 27-29.) In response to Professor Barnett's arguments distinguishing Lopez, Scalia said that Wickard v. Fillburn applies. ( Id. at 39-41.) On page 40 of the Transcript, Nino said, "I always used to laugh at Wickard, but . . ." it stands for the proposition that intrastate activity can aggregate to affect interstate commercial activity (and thus be within Congress' Commerce Clause authority).

Professor Barnett tries to distinguish Wickard by arguing that the weed grown in California is not an economic activity because it's grown by the medical users for their own consumption. (Transcript at 42-3.) But Justice Scalia countered by saying that the home grown medical pot was like the wheat in Wickard: "since its grown on the farm, it doesn't have to be bought elsewhere, and that makes it an economic activity."(Id. at 43)

If we can draw any conclusions from Scalia's line of questioning during the Raich oral arguments, it looks like he's going to support Congress on this one. That might seem inconsistent with the Scalian originalist/textualist philosophy. I mean, all law students "laugh" (or shake their heads) at Wickard when they first read the case. But Scalia seems willing to argue that Wickard applies to California medical home grown sticky bud. Hey, Nino don't Bogart that Commerce Clause!

Anyway, at lease one commentator suggests that federalist Justices (like Scalia, Thomas, and Rehnquist) will strike down broad Congressional Commerce Clause power when it regulates something they like (e.g., guns in Lopez), but support Congress when it deals with something the Justices are against (e.g, dope cultivation in Raich). (See 12/14/04 NY Times editorial by Adam Cohen discussing Lopez, Raich and the swinging pendulum of Supreme Court Commerce Clause interpretation.) But another commentator, University of Wisconsin Law Professor Ann Althouse, doesn't think the federalist Justices are being inconsistent in their Commerce Clause jurisprudence. In any event, stay tuned for the Court's opinion in Raich.


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