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Gonzales v. Raich: Another state's rights retreat

By Robert S. Sargent, Jr.
web posted June 13, 2005

Last Monday, the Supreme Court ruled (Gonzales v. Raich) that the federal Controlled Substances Act (CSA) was constitutional and "Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." This law, the Compassionate Use Act, allows Californians to use marijuana for medicinal purposes. The federal CSA prevents all Americans from "possessing, obtaining, or manufacturing cannabis for their personal medical use."

Angel Raich is seen with cannabis buds at her home on June 6 in Oakland, Calif.
Angel Raich is seen with cannabis buds at her home on June 6 in Oakland, Calif.

The issue isn't whether Congress can regulate interstate commerce, the issue here is can Congress regulate the intrastate growing and using of marijuana? In a Reuters article it said, "Angel Raich has as inoperable brain tumor and other medical problems while Diane Monson suffers from severe back pain. Their doctors recommended marijuana for their pain, Monson cultivates her own marijuana while two of Raich's caregivers grow the marijuana and provide it to her free of charge. In 2002, Drug Enforcement Administration agents destroyed six cannabis plants seized from Monson's home." Raich and Monson argued that the California law didn't violate the Commerce Clause of the Constitution.

Unfortunately for Raich and Monson, Justice Stevens, writing for the 6-3 majority, wrote: "Congress' power to regulate purely local activities that are part of an economic ‘class of activities' that have a substantial effect on interstate commerce is firmly established… [T]he regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption…has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress' Commerce Clause authority, the Court need not determine whether respondents' activities taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis' exists for so concluding." Stevens goes on, "Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that produce." It seems if Congress is "rational" it can extend the arm of the Commerce Clause to any intrastate activity.

Stevens quotes a 1942 case, Wickard v. Filburn, a time when the Supreme Court was allowing FDR's Congress the power to write any law in the name of the Commerce Clause, "…even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." What is "substantial," or "rational," of course, will be determined by our judges.

Wading in in a concurring opinion, Justice Scalia wrote, "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." Where does Congress get that power? "Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce derives from the Necessary and Proper Clause." Well, heck, if it's not "rational," it's for darn sure necessary and proper. (Question: Is Scalia smoking the very cannabis that Raich and Monson may now be denied?)

Justice O'Connor, in her dissent, pointed out that "…the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes…has a substantial effect on interstate commerce." She goes on, "Congress cannot use its authority under the (Necessary and Proper) Clause to contravene the principle of state sovereignty embodied in the Tenth Amendment." Are you listening Scalia?

But Clarence Thomas, in his separate dissent, put it best: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers." Thomas ends his excellent dissent with, "Our Federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens."

Unfortunately and what is so disturbing to constitutional conservatives is that in the recent Granholm v. Heald, which held state laws that allowed in-state wine shipments, but not out-of-state, in violation of the Constitution, and in this, Gonzales v. Raich, which holds that the Commerce Clause allows Congress to reach into what should be the state's domain, we have seen the defection of Justices Kennedy and Scalia from their previous commitment to the Tenth Amendment and state's rights.

Remember United States v. Lopez when the Court struck down the federal Gun Free School Zones Act? We all thought there would be a new revolution in Commerce Clause limitation and a new awareness of the Tenth Amendment. Fuggedaboutit.

Robert S. Sargent, Jr. is a senior writer with Enter Stage Right and can be reached at rssjr@citcom.net.

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    Although everyone is focused on the war in Afghanistan, Vin Suprynowicz points out that the war against medical marijuana continues unabated


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