ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., Petitioners v. ANGEL McCLARY RAICH
et al.
No. 03-1454
SUPREME COURT OF THE UNITED STATES
545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1(2005)
November 29, 2004, Argued
June 6, 2005, Decided
SUBSEQUENT HISTORY: On remand at Raich v. Gonzales, 500 F.3d 850
(9th Cir. 2007)
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. Cal., 2003)
SYLLABUS
California's Compassionate Use Act authorizes limited marijuana use for medicinal
purposes. Respondents Raich and Monson are California residents who both use doctor-recommended
marijuana for serious medical conditions. After federal Drug Enforcement Administration
(DEA) agents seized and destroyed all six of Monson's cannabis plants, respondents
brought this action seeking injunctive and declaratory relief prohibiting the enforcement
of the federal Controlled Substances Act (CSA) to the extent it prevents them from
possessing, obtaining, or manufacturing cannabis for their personal medical use.
Respondents claim that enforcing the CSA against them would violate the Commerce
Clause and other constitutional provisions. The District Court denied respondents'
motion for a preliminary injunction, but the Ninth Circuit reversed, finding that
they had demonstrated a strong likelihood of success on the claim that the CSA is
an unconstitutional exercise of Congress' Commerce Clause authority as applied to
the intrastate, noncommercial cultivation and possession of cannabis for personal
medical purposes as recommended by a patient's physician pursuant to valid California
state law. The court relied heavily on United States v. Lopez, 514 U.S. 549, 131
L. Ed. 2d 626, 115 S. Ct. 1624, and United States v. Morrison, 529 U.S. 598, 146
L. Ed. 2d 658, 120 S. Ct. 1740, to hold that this separate class of purely local
activities was beyond the reach of federal power.
Held:
Congress' Commerce Clause authority includes the power to prohibit the local cultivation
and use of marijuana in compliance with California law.
(a) For the purposes of consolidating various drug laws into a comprehensive statute,
providing meaningful regulation over legitimate sources of drugs to prevent diversion
into illegal channels, and strengthening law enforcement tools against international
and interstate drug trafficking, Congress enacted the Comprehensive Drug Abuse Prevention
and Control Act of 1970, Title II of which is the CSA. To effectuate the statutory
goals, Congress devised a closed regulatory system making it unlawful to manufacture,
distribute, dispense, or possess any controlled substance except as authorized by
the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). All controlled substances are classified
into five schedules, § 812, based on their accepted medical uses, their potential
for abuse, and their psychological and physical effects on the body, §§ 811, 812.
Marijuana is classified as a Schedule I substance, § 812(c), based on its high potential
for abuse, no accepted medical use, and no accepted safety for use in medically
supervised treatment, § 812(b)(1). This classification renders the manufacture,
distribution, or possession of marijuana a criminal offense. §§ 841(a)(1), 844(a).
(b) 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. See, e.g., Perez v. United States, 402 U.S. 146, 151, 28
L. Ed. 2d 686, 91 S. Ct. 1357. If Congress decides that the "'total incidence'"
of a practice poses a threat to a national market, it may regulate the entire class.
See, e.g., id., at 154-155, 28 L. Ed. 2d 686, 91 S. Ct. 1357. Of particular relevance
here is Wickard v. Filburn, 317 U.S. 111, 127-128, 87 L. Ed. 122, 63 S. Ct. 82,
where, in rejecting the appellee farmer's contention that Congress' admitted power
to regulate the production of wheat for commerce did not authorize federal regulation
of wheat production intended wholly for the appellee's own consumption, the Court
established that Congress can regulate purely intrastate activity that is not itself
"commercial," i.e., not produced for sale, if it concludes that failure
to regulate that class of activity would undercut the regulation of the interstate
market in that commodity. The similarities between this case and Wickard are striking.
In both cases, the regulation is squarely within Congress' commerce power because
production of the commodity meant for home consumption, be it wheat or marijuana,
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. E.g., Lopez, 514 U.S., at 557, 131 L. Ed. 2d 626, 115
S. Ct. 1624. Given the enforcement difficulties that attend distinguishing between
marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5),
and concerns about diversion into illicit channels, the Court has no difficulty
concluding that Congress had a rational basis for believing that failure to regulate
the intrastate manufacture and possession of marijuana would leave a gaping hole
in the CSA.
(c) Respondents' heavy reliance on Lopez and Morrison overlooks the larger context
of modern-era Commerce Clause jurisprudence preserved by those cases, while also
reading those cases far too broadly. The statutory challenges at issue there were
markedly different from the challenge here. Respondents ask the Court to excise
individual applications of a concededly valid comprehensive statutory scheme. In
contrast, in both Lopez and Morrison, the parties asserted that a particular statute
or provision fell outside Congress' commerce power in its entirety. This distinction
is pivotal for the Court has often reiterated that "[w]here the class of activities
is regulated and that class is within the reach of federal power, the courts have
no power 'to excise, as trivial, individual instances' of the class." Perez,
402 U.S., at 154, 28 L. Ed. 2d 686, 91 S. Ct. 1357. Moreover, the Court emphasized
that the laws at issue in Lopez and Morrison had nothing to do with "commerce"
or any sort of economic enterprise. See Lopez, 514 U.S., at 561, 131 L. Ed. 2d 626,
115 S. Ct. 1624; Morrison, 529 U.S., at 610, 146 L. Ed. 2d 658, 120 S. Ct. 1740.
In contrast, the CSA regulates quintessentially economic activities: the production,
distribution, and consumption of commodities for which there is an established,
and lucrative, interstate market. Prohibiting the intrastate possession or manufacture
of an article of commerce is a rational means of regulating commerce in that product.
The Ninth Circuit cast doubt on the CSA's constitutionality by isolating a distinct
class of activities that it held to be beyond the reach of federal power: the intrastate,
noncommercial cultivation, possession, and use of marijuana for personal medical
purposes on the advice of a physician and in accordance with state law. However,
Congress clearly acted rationally in determining that this subdivided class of activities
is an essential part of the larger regulatory scheme. The case comes down to the
claim that a locally cultivated product that is used domestically rather than sold
on the open market is not subject to federal regulation. Given the CSA's findings
and the undisputed magnitude of the commercial market for marijuana, Wickard and
its progeny foreclose that claim.
352 F.3d 1222, vacated and remanded.
COUNSEL: Paul D. Clement argued the cause for petitioners.
Randy E. Barnett argued the cause for respondents.
JUDGES: Stevens, J., delivered the opinion of the Court, in which
Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion
concurring in the judgment. O'Connor, J., filed a dissenting opinion, in which Rehnquist,
C. J., and Thomas, J., joined as to all but Part III. Thomas, J., filed a dissenting
opinion.
OPINION BY: STEVENS
OPINION
[*5] Justice Stevens delivered the opinion of the Court.
California is one of at least nine States that authorize the use of marijuana for
medicinal purposes. [Footnote 1] The question presented in this case is whether
the power vested in Congress by Article I, § 8, of the Constitution "[t]o make
all Laws which shall be necessary and proper for carrying into Execution" its
authority to "regulate Commerce with foreign Nations, and among the several
States" includes the power to prohibit the local cultivation and use of marijuana
in compliance with California law.
I
California has been a pioneer in the regulation of marijuana. In 1913, California
was one of the first States to prohibit the sale and possession of marijuana, [Footnote
2] and at the end of the century, California became the first State to authorize
limited use of the drug for medicinal purposes. In 1996, California voters passed
Proposition 215, now codified as the Compassionate Use Act of 1996. [Footnote 3]
The proposition was designed [*6] to ensure that "seriously
ill" residents of the State have access to marijuana for medical purposes,
and to encourage Federal and State Governments to take steps towards ensuring the
safe and affordable distribution of the drug to patients in need. [Footnote 4] The
Act creates an exemption from criminal prosecution for physicians, [Footnote 5]
as well as for patients and primary caregivers who possess or cultivate marijuana
for medicinal purposes with the recommendation or approval of a physician. [Footnote
6] A "primary caregiver" is a person who has consistently assumed responsibility
for the housing, health, or safety of the patient. [Footnote 7]
Respondents Angel Raich and Diane Monson are California residents who suffer from
a variety of serious medical conditions and have sought to avail themselves of medical
marijuana pursuant to the terms of the Compassionate Use [*7] Act.
They are being treated by licensed, board-certified family practitioners, who have
concluded, after prescribing a host of conventional medicines to treat respondents'
conditions and to alleviate their associated symptoms, that marijuana is the only
drug available that provides effective treatment. Both women have been using marijuana
as a medication for several years pursuant to their doctors' recommendation, and
both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician
believes that forgoing cannabis treatments would certainly cause Raich excruciating
pain and could very well prove fatal.
Respondent Monson cultivates her own marijuana, and ingests the drug in a variety
of ways including smoking and using a vaporizer. Respondent Raich, by contrast,
is unable to cultivate her own, and thus relies on two caregivers, litigating as
"John Does," to provide her with locally grown marijuana at no charge.
These caregivers also process the cannabis into hashish or keif, and Raich herself
processes some of the marijuana into oils, balms, and foods for consumption.
On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement
Administration (DEA) came to Monson's home. After a thorough investigation, the
county officials concluded that her use of marijuana was entirely lawful as a matter
of California law. Nevertheless, after a 3-hour standoff, the federal agents seized
and destroyed all six of her cannabis plants.
Respondents thereafter brought this action against the Attorney General of the United
States and the head of the DEA seeking injunctive and declaratory relief prohibiting
the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21
U.S.C. § 801 et seq., to the extent it prevents them from possessing, obtaining,
or manufacturing cannabis for their personal medical use. In their complaint and
supporting affidavits, Raich and Monson described the severity of their afflictions,
their repeatedly futile attempts [*8] to obtain relief with conventional
medications, and the opinions of their doctors concerning their need to use marijuana.
Respondents claimed that enforcing the CSA against them would violate the Commerce
Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments
of the Constitution, and the doctrine of medical necessity.
The District Court denied respondents' motion for a preliminary injunction. Raich
v. Ashcroft, 248 F. Supp. 2d 918 (ND Cal. 2003). Although the court found that the
federal enforcement interests "wane[d]" when compared to the harm that
California residents would suffer if denied access to medically necessary marijuana,
it concluded that respondents could not demonstrate a likelihood of success on the
merits of their legal claims. Id., at 931.
A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered
the District Court to enter a preliminary injunction. [Footnote 8] Raich v. Ashcroft,
352 F.3d 1222 (2003). The court found that respondents had "demonstrated a
strong likelihood of success on their claim that, as applied to them, the CSA is
an unconstitutional exercise of Congress' Commerce Clause authority." Id.,
at 1227. The Court of Appeals distinguished prior Circuit cases upholding the CSA
in the face of Commerce Clause challenges by focusing on what it deemed to be the
"separate and distinct class of activities" at issue in this case: "the
intrastate, noncommercial cultivation and possession of cannabis for personal medical
purposes as recommended by a patient's physician pursuant to valid California state
law." Id., at 1228. The [*9] court found the latter class
of activities "different in kind from drug trafficking" because interposing
a physician's recommendation raises different health and safety concerns, and because
"this limited use is clearly distinct from the broader illicit drug market--as
well as any broader commercial market for medicinal marijuana--insofar as the medicinal
marijuana at issue in this case is not intended for, nor does it enter, the stream
of commerce." Ibid.
The majority placed heavy reliance on our decisions in United States v. Lopez, 514
U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), and United States v. Morrison,
529 U.S. 598, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000), as interpreted by recent
Circuit precedent, to hold that this separate class of purely local activities was
beyond the reach of federal power. In contrast, the dissenting judge concluded that
the CSA, as applied to respondents, was clearly valid under Lopez and Morrison;
moreover, he thought it "simply impossible to distinguish the relevant conduct
surrounding the cultivation and use of the marijuana crop at issue in this case
from the cultivation and use of the wheat crop that affected interstate commerce
in Wickard v. Filburn." 352 F.3d, at 1235 (Beam, J., dissenting) (citation
omitted).
The obvious importance of the case prompted our grant of certiorari. 542 U.S. 936,
542 U.S. 936, 159 L. Ed. 2d 811, 124 S. Ct. 2909 (2004). The case is made difficult
by respondents' strong arguments that they will suffer irreparable harm because,
despite a congressional finding to the contrary, marijuana does have valid therapeutic
purposes. The question before us, however, is not whether it is wise to enforce
the statute in these circumstances; rather, it is whether Congress' power to regulate
interstate markets for medicinal substances encompasses the portions of those markets
that are supplied with drugs produced and consumed locally. Well-settled law controls
our answer. The CSA is a valid exercise of federal power, even as applied to the
troubling facts of this case. We accordingly vacate the judgment of the Court of
Appeals.
[*10] II
Shortly after taking office in 1969, President Nixon declared a national "war
on drugs." [Footnote 9] As the first campaign of that war, Congress set out
to enact legislation that would consolidate various drug laws on the books into
a comprehensive statute, provide meaningful regulation over legitimate sources of
drugs to prevent diversion into illegal channels, and strengthen law enforcement
tools against the traffic in illicit drugs. [Footnote 10] That effort culminated
in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970,
84 Stat. 1236.
This was not, however, Congress' first attempt to regulate the national market in
drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling
regulations on medications and prohibiting the manufacture or shipment of any adulterated
or misbranded drug traveling in interstate commerce. [Footnote 11] Aside from these
labeling restrictions, most domestic drug regulations prior to 1970 generally came
in the guise of revenue laws, with the Department of the Treasury serving as the
Federal Government's primary enforcer. [Footnote 12] For example, the primary drug
control law, before being repealed by the passage of the CSA, was the Harrison Narcotics
Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison Act sought to exert control
over the possession and sale of narcotics, specifically cocaine and opiates, by
requiring producers, distributors, and purchasers to register with the Federal Government,
by assessing taxes against [*11] parties so registered, and by
regulating the issuance of prescriptions. [Footnote 13]
Marijuana itself was not significantly regulated by the Federal Government until
1937 when accounts of marijuana's addictive qualities and physiological effects,
paired with dissatisfaction with enforcement efforts at state and local levels,
prompted Congress to pass the Marihuana Tax Act, Pub. L. 75-238, 50 Stat. 551 (repealed
1970). [Footnote 14] Like the Harrison Act, the Marihuana Tax Act did not outlaw
the possession or sale of marijuana outright. Rather, it imposed registration and
reporting requirements for all individuals importing, producing, selling, or dealing
in marijuana, and required the payment of annual taxes in addition to transfer taxes
whenever the drug changed hands. [Footnote 15] Moreover, doctors wishing to prescribe
marijuana for medical purposes were required to comply with rather burdensome administrative
requirements. [Footnote 16] Noncompliance exposed traffickers to severe federal
penalties, whereas compliance would often subject them to prosecution under state
law. [Footnote 17] Thus, while the Marihuana Tax Act did not declare the drug illegal
per se, the onerous administrative requirements, the prohibitively expensive taxes,
and the risks attendant on compliance practically curtailed the marijuana trade.
Then in 1970, after declaration of the national "war on drugs," federal
drug policy underwent a significant transformation. A number of noteworthy events
precipitated [*12] this policy shift. First, in Leary v. United
States, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969), this Court held certain
provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional.
Second, at the end of his term, President Johnson fundamentally reorganized the
federal drug control agencies. The Bureau of Narcotics, then housed in the Department
of Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department
of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous
Drugs, currently housed in the Department of Justice. [Footnote 18] Finally, prompted
by a perceived need to consolidate the growing number of piecemeal drug laws and
to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug
Abuse Prevention and Control Act. [Footnote 19]
Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor
of a comprehensive regime to combat the international and interstate traffic in
illicit drugs. The main objectives of the CSA were to conquer drug abuse and to
control the legitimate and illegitimate traffic in controlled substances. [Footnote
20] Congress was particularly concerned with the [*13] need to
prevent the diversion of drugs from legitimate to illicit channels. [Footnote 21]
To effectuate these goals, Congress devised a closed regulatory system making it
unlawful to manufacture, distribute, dispense, or possess any controlled substance
except in a manner authorized by the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). The CSA
categorizes all controlled substances into five schedules. § 812. The drugs are
grouped together based on their accepted medical uses, the potential for abuse,
and their psychological and physical effects on the body. [*14]
§§ 811, 812. Each schedule is associated with a distinct set of controls regarding
the manufacture, distribution, and use of the substances listed therein. §§ 821-830.
The CSA and its implementing regulations set forth strict requirements regarding
registration, labeling and packaging, production quotas, drug security, and recordkeeping.
Ibid. 21 CFR § 1301 et seq. (2004).
In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U.S.C.
§ 812(c). This preliminary classification was based, in part, on the recommendation
of the Assistant Secretary of HEW "that marihuana be retained within schedule
I at least until the completion of certain studies now underway." [Footnote
22] Schedule I drugs are categorized as such because of their high potential for
abuse, lack of any accepted medical use, and absence of any accepted safety for
use in medically supervised treatment. § 812(b)(1). These three factors, in varying
gradations, are also used to categorize drugs in the other four schedules. For example,
Schedule II substances also have a high potential for abuse which may lead to severe
psychological or physical dependence, but unlike Schedule I drugs, they have a currently
accepted medical use. § 812(b)(2). By classifying marijuana as a Schedule I drug,
as opposed to listing it on a lesser schedule, the manufacture, distribution, or
possession of marijuana became a criminal offense, with the sole exception being
use of the drug as part of a Food and Drug Administration pre-approved research
study. §§ 823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis
Buyers' Cooperative, 532 U.S. 483, 490, 149 L. Ed. 2d 722, 121 S. Ct. 1711 (2001).
The CSA provides for the periodic updating of schedules and delegates authority
to the Attorney General, after consultation with the Secretary of Health and Human
Services, to add, remove, or transfer substances to, from, or between [*15]
schedules. § 811. Despite considerable efforts to reschedule marijuana, it remains
a Schedule I drug. [Footnote 23]
III
Respondents in this case do not dispute that passage of the CSA, as part of the
Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce
power. Brief for Respondents 22, 38. Nor do they contend that any provision or section
of the CSA amounts to an unconstitutional exercise of congressional authority. Rather,
respondents' challenge is actually quite limited; they argue that the CSA's categorical
prohibition of the manufacture and possession of marijuana as applied to the intrastate
manufacture and possession of marijuana for medical purposes pursuant to California
law exceeds Congress' authority under the Commerce Clause.
In assessing the validity of congressional regulation, none of our Commerce Clause
cases can be viewed in isolation. As charted in considerable detail in United States
v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress'
assertion of authority thereunder, has [*16] evolved over time.
[Footnote 24] The Commerce Clause emerged as the Framers' response to the central
problem giving rise to the Constitution itself: the absence of any federal commerce
power under the Articles of Confederation. [Footnote 25] For the first century of
our history, the primary use of the Clause was to preclude the kind of discriminatory
state legislation that had once been permissible. [Footnote 26] Then, in response
to rapid industrial development and an increasingly interdependent national economy,
Congress "ushered in a new era of federal regulation under the commerce power,"
beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379,
and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U.S.C. § 2 et
seq. [Footnote 27]
Cases decided during that "new era," which now spans more than a century,
have identified three general categories of regulation in which Congress is authorized
to engage under its commerce power. First, Congress can regulate the channels of
interstate commerce. Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686,
91 S. Ct. 1357 (1971). Second, Congress has authority to regulate and protect the
instrumentalities of interstate commerce, and persons or things in interstate
[*17] commerce. Ibid. Third, Congress has the power to regulate activities
that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 37, 81 L. Ed. 893, 57 S. Ct. 615 (1937). Only the third
category is implicated in the case at hand.
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. See, e.g., Perez, 402 U.S., at 151, 28 L. Ed. 2d
686, 91 S. Ct. 1357; Wickard v. Filburn, 317 U.S. 111, 128-129, 87 L. Ed. 122, 63
S. Ct. 82 (1942). As we stated in Wickard, "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." Id., at 125, 87 L. Ed. 122, 63 S. Ct. 82. We have never required
Congress to legislate with scientific exactitude. When Congress decides that the
"'total incidence'" of a practice poses a threat to a national market,
it may regulate the entire class. See Perez, 402 U.S., at 154-155, 28 L. Ed. 2d
686, 91 S. Ct. 1357 (quoting Westfall v. United States, 274 U.S. 256, 259, 71 L.
Ed. 1036, 47 S. Ct. 629 (1927) ("[W]hen it is necessary in order to prevent
an evil to make the law embrace more than the precise thing to be prevented it may
do so")). In this vein, we have reiterated that when "'a general regulatory
statute bears a substantial relation to commerce, the de minimis character of individual
instances arising under that statute is of no consequence.'" E.g., Lopez, 514
U.S., at 558, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (emphasis deleted) (quoting Maryland
v. Wirtz, 392 U.S. 183, 196, n. 27, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968)).
Our decision in Wickard, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82, is of particular
relevance. In Wickard, we upheld the application of regulations promulgated under
the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control
the volume of wheat moving in interstate and foreign commerce in order to avoid
surpluses and consequent abnormally low prices. The regulations established an allotment
of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres, intending to
use the excess by consuming it on his own farm. Filburn [*18] argued
that even though we had sustained Congress' power to regulate the production of
goods for commerce, that power did not authorize "federal regulation [of] production
not intended in any part for commerce but wholly for consumption on the farm."
Wickard, 317 U.S., at 118, 87 L. Ed. 122, 63 S. Ct. 82. Justice Jackson's opinion
for a unanimous Court rejected this submission. He wrote:
"The effect of the statute before us is to restrict the amount which may be
produced for market and the extent as well to which one may forestall resort to
the market by producing to meet his own needs. That appellee's own contribution
to the demand for wheat may be trivial by itself is not enough to remove him from
the scope of federal regulation where, as here, his contribution, taken together
with that of many others similarly situated, is far from trivial." Id., at
127-128, 87 L. Ed. 122, 63 S. Ct. 82.
Wickard thus establishes that Congress can regulate purely intrastate activity that
is not itself "commercial," in that it is not produced for sale, if it
concludes that failure to regulate that class of activity would undercut the regulation
of the interstate market in that commodity.
The similarities between this case and Wickard are striking. Like the farmer in
Wickard, respondents are cultivating, for home consumption, a fungible commodity
for which there is an established, albeit illegal, interstate market. [Footnote
28] Just as the Agricultural Adjustment Act was designed "to [*19]
control the volume [of wheat] moving in interstate and foreign commerce in order
to avoid surpluses . . ." and consequently control the market price, id., at
115, 87 L. Ed. 122, 63 S. Ct. 82, a primary purpose of the CSA is to control the
supply and demand of controlled substances in both lawful and unlawful drug markets.
See nn 20-21, supra. In Wickard, we had no difficulty concluding that Congress had
a rational basis for believing that, when viewed in the aggregate, leaving home-consumed
wheat outside the regulatory scheme would have a substantial influence on price
and market conditions. Here too, Congress had a rational basis for concluding that
leaving home-consumed marijuana outside federal control would similarly affect price
and market conditions.
More concretely, one concern prompting inclusion of wheat grown for home consumption
in the 1938 Act was that rising market prices could draw such wheat into the interstate
market, resulting in lower market prices. Wickard, 317 U.S., at 128, 87 L. Ed. 122,
63 S. Ct. 82. The parallel concern making it appropriate to include marijuana grown
for home consumption in the CSA is the likelihood that the high demand in the interstate
market will draw such marijuana into that market. While the diversion of homegrown
wheat tended to frustrate the federal interest in stabilizing prices by regulating
the volume of commercial transactions in the interstate market, the diversion of
homegrown marijuana tends to frustrate the federal interest in eliminating commercial
transactions in the interstate market in their entirety. In both cases, the regulation
is squarely within Congress' commerce power because production of the commodity
meant for home consumption, be it wheat or marijuana, has a substantial effect on
supply and demand in the national market for that commodity. [Footnote 29]
[*20] Nonetheless, respondents suggest that Wickard differs from
this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA,
exempted small farming operations; (2) Wickard involved a "quintessential economic
activity"--a commercial farm--whereas respondents do not sell marijuana; and
(3) the Wickard record made it clear that the aggregate production of wheat for
use on farms had a significant impact on market prices. Those differences, though
factually accurate, do not diminish the precedential force of this Court's reasoning.
The fact that Wickard's own impact on the market was "trivial by itself"
was not a sufficient reason for removing him from the scope of federal regulation.
317 U.S., at 127, 87 L. Ed. 122, 63 S. Ct. 82. That the Secretary of Agriculture
elected to exempt even smaller farms from regulation does not speak to his power
to regulate all those whose aggregated production was significant, nor did that
fact play any role in the Court's analysis. Moreover, even though Wickard was indeed
a commercial farmer, the activity he was engaged in--the cultivation of wheat for
home consumption--was not treated by the Court as part of his commercial farming
operation. [Footnote 30] And while it is true that the record in the Wickard case
itself established the causal connection between the production for local use and
the national market, we have before us findings by Congress to the same effect.
Findings in the introductory sections of the CSA explain why Congress deemed it
appropriate to encompass local activities within the scope of the CSA. See n 20,
supra. The [*21] submissions of the parties and the numerous amici
all seem to agree that the national, and international, market for marijuana has
dimensions that are fully comparable to those defining the class of activities regulated
by the Secretary pursuant to the 1938 statute. [Footnote 31] Respondents nonetheless
insist that the CSA cannot be constitutionally applied to their activities because
Congress did not make a specific finding that the intrastate cultivation and possession
of marijuana for medical purposes based on the recommendation of a physician would
substantially affect the larger interstate marijuana market. Be that as it may,
we have never required Congress to make particularized findings in order to legislate,
see Lopez, 514 U.S., at 562, 131 L. Ed. 2d 626, 115 S. Ct. 1624; Perez, 402 U.S.,
at 156, 28 L. Ed. 2d 686, 91 S. Ct. 1357, absent a special concern such as the protection
of free speech, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,
664-668, 129 L. Ed. 2d 497, 114 S. Ct. 2445 (1994) (plurality opinion). While congressional
findings are certainly helpful in reviewing the substance of a congressional statutory
scheme, particularly when the connection to commerce is not self-evident, and while
we will consider congressional findings in our analysis when they are available,
the absence of particularized findings does not call into question Congress' authority
to legislate. [Footnote 32]
[*22] In assessing the scope of Congress' authority under the Commerce
Clause, we stress that the task before us is a modest one. We 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.
Lopez, 514 U.S., at 557, 131 L. Ed. 2d 626, 115 S. Ct. 1624; see also Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-280, 69 L. Ed. 2d
1, 101 S. Ct. 2352 (1981); Perez, 402 U.S., at 155-156, 28 L. Ed. 2d 686, 91 S.
Ct. 1357; Katzenbach v. McClung, 379 U.S. 294, 299-301, 13 L. Ed. 2d 290, 85 S.
Ct. 377 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253,
13 L. Ed. 2d 258, 85 S. Ct. 348 (1964). Given the enforcement difficulties that
attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere,
21 U.S.C. § 801(5), and concerns about diversion into illicit channels, [Footnote
33] we have no difficulty concluding that Congress had a rational basis for believing
that failure to regulate the intrastate manufacture and possession of marijuana
would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive
legislation to regulate the interstate market in a fungible commodity, Congress
was acting well within its authority to "make all Laws which shall be necessary
and proper" to "regulate Commerce . . . among the several States."
U.S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity
is of no moment. As we have done many times before, we refuse to excise individual
components of that larger scheme.
[*23] IV
To support their contrary submission, respondents rely heavily on two of our more
recent Commerce Clause cases. In their myopic focus, they overlook the larger context
of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover,
even in the narrow prism of respondents' creation, they read those cases far too
broadly.
Those two cases, of course, are Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct.
1624, and Morrison, 529 U.S. 598, 146 L. Ed. 2d 658, 120 S. Ct. 1740. As an initial
matter, the statutory challenges at issue in those cases were markedly different
from the challenge respondents pursue in the case at hand. Here, respondents ask
us to excise individual applications of a concededly valid statutory scheme. In
contrast, in both Lopez and Morrison, the parties asserted that a particular statute
or provision fell outside Congress' commerce power in its entirety. This distinction
is pivotal for we have often reiterated that "[w]here the class of activities
is regulated and that class is within the reach of federal power, the courts have
no power 'to excise, as trivial, individual instances' of the class." Perez,
402 U.S., at 154, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (emphasis deleted) (quoting Wirtz,
392 U.S., at 193, 20 L. Ed. 2d 1020, 88 S. Ct. 2017); see also Hodel, 452 U.S.,
at 308, 69 L. Ed. 2d 1, 101 S. Ct. 2352.
At issue in Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624, was the validity
of the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute
making it a crime for an individual to possess a gun in a school zone. 104 Stat.
4844-4845, 18 U.S.C. § 922(q)(1)(A). The Act did not regulate any economic activity
and did not contain any requirement that the possession of a gun have any connection
to past interstate activity or a predictable impact on future commercial activity.
Distinguishing our earlier cases holding that comprehensive regulatory statutes
may be validly applied to local conduct that does not, when viewed in isolation,
have a significant impact on interstate commerce, we held the statute invalid. We
explained:
[*24] "Section 922(q) is a criminal statute that by its terms
has nothing to do with 'commerce' or any sort of economic enterprise, however broadly
one might define those terms. Section 922(q) is not an essential part of a larger
regulation of economic activity, in which the regulatory scheme could be undercut
unless the intrastate activity were regulated. It cannot, therefore, be sustained
under our cases upholding regulations of activities that arise out of or are connected
with a commercial transaction, which viewed in the aggregate, substantially affects
interstate commerce." 514 U.S., at 561, 131 L. Ed. 2d 626, 115 S. Ct. 1624.
The statutory scheme that the Government is defending in this litigation is at the
opposite end of the regulatory spectrum. As explained above, the CSA, enacted in
1970 as part of the Comprehensive Drug Abuse Prevention and Control Act, 84 Stat.
1242-1284, was a lengthy and detailed statute creating a comprehensive framework
for regulating the production, distribution, and possession of five classes of "controlled
substances." Most of those substances--those listed in Schedules II through
V--"have a useful and legitimate medical purpose and are necessary to maintain
the health and general welfare of the American people." 21 U.S.C. § 801(1).
The regulatory scheme is designed to foster the beneficial use of those medications,
to prevent their misuse, and to prohibit entirely the possession or use of substances
listed in Schedule I, except as a part of a strictly controlled research project.
While the statute provided for the periodic updating of the five schedules, Congress
itself made the initial classifications. It identified 42 opiates, 22 opium derivatives,
and 17 hallucinogenic substances as Schedule I drugs. 84 Stat. 1248. Marijuana was
listed as the 10th item in the third subcategory. That classification, unlike the
discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely
one of many "essential part[s] of a larger regulation of economic activity,
in which the regulatory scheme could be undercut [*25] unless the
intrastate activity were regulated." Lopez, 514 U.S., at 561, 131 L. Ed. 2d
626, 115 S. Ct. 1624. [Footnote 34] Our opinion in Lopez casts no doubt on the validity
of such a program.
Nor does this Court's holding in Morrison, 529 U.S. 598, 146 L. Ed. 2d 658, 120
S. Ct. 1740. The Violence Against Women Act of 1994, 108 Stat. 1902, created a federal
civil remedy for the victims of gender-motivated crimes of violence. 42 U.S.C. §
13981. The remedy was enforceable in both state and federal courts, and generally
depended on proof of the violation of a state law. Despite congressional findings
that such crimes had an adverse impact on interstate commerce, we held the statute
unconstitutional because, like the statute in Lopez, it did not regulate economic
activity. We concluded that "the noneconomic, criminal nature of the conduct
at issue was central to our decision" in Lopez, and that our prior cases had
identified a clear pattern of analysis: "'Where economic activity substantially
affects interstate commerce, legislation regulating that activity will be sustained.'"
[Footnote 35] Morrison, 529 U.S., at 610, 146 L. Ed. 2d 658, 120 S. Ct. 1740.
Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA
are quintessentially economic. "Economics" refers to "the production,
distribution, and consumption of commodities." Webster's Third New International
[*26] Dictionary 720 (1966). The CSA is a statute that regulates
the production, distribution, and consumption of commodities for which there is
an established, and lucrative, interstate market. Prohibiting the intrastate possession
or manufacture of an article of commerce is a rational (and commonly utilized) means
of regulating commerce in that product. [Footnote 36] Such prohibitions include
specific decisions requiring that a drug be withdrawn from the market as a result
of the failure to comply with regulatory requirements as well as decisions excluding
Schedule I drugs entirely from the market. Because the CSA is a statute that directly
regulates economic, commercial activity, our opinion in Morrison casts no doubt
on its constitutionality.
The Court of Appeals was able to conclude otherwise only by isolating a "separate
and distinct" class of activities that it held to be beyond the reach of federal
power, defined as "the intrastate, noncommercial cultivation, possession and
use of marijuana for personal medical purposes on the advice of a physician and
in accordance with state law." 352 F.3d at 1229. The court characterized this
class as "different in kind from drug trafficking." Id., at 1228. The
differences between the members of a class so defined and the principal traffickers
in Schedule I substances might be sufficient to justify a policy decision exempting
the narrower class from the coverage of the CSA. The question, however, is whether
Congress' contrary policy judgment, i.e., its decision to include this narrower
"class of activities" within the larger regulatory scheme, was constitutionally
deficient. We have no difficulty concluding that Congress acted rationally in determining
that none of the characteristics making up the purported class, whether viewed individually
or in the aggregate, compelled an exemption from the CSA; rather, the subdivided
class of activities defined by the Court [*27] of Appeals was an
essential part of the larger regulatory scheme.
First, the fact that marijuana is used "for personal medical purposes on the
advice of a physician" cannot itself serve as a distinguishing factor. 352
F.3d at 1229. The CSA designates marijuana as contraband for any purpose; in fact,
by characterizing marijuana as a Schedule I drug, Congress expressly found that
the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory
regime specifically designed to regulate which controlled substances can be utilized
for medicinal purposes, and in what manner. Indeed, most of the substances classified
in the CSA "have a useful and legitimate medical purpose." 21 U.S.C. §
801(1). Thus, even if respondents are correct that marijuana does have accepted
medical uses and thus should be redesignated as a lesser schedule drug, [Footnote
37] the CSA would still impose controls beyond what is required by California law.
The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled
substances to comply with statutory and regulatory provisions mandating registration
with the DEA, compliance with specific production quotas, security controls to guard
against diversion, recordkeeping and reporting obligations, and prescription requirements.
See [*28] 21 U.S.C. §§ 821-830; 21 CFR § 1301 et seq. (2004). Furthermore,
the dispensing of new drugs, even when doctors approve their use, must await federal
approval. United States v. Rutherford, 442 U.S. 544, 61 L. Ed. 2d 68, 99 S. Ct.
2470 (1979). Accordingly, the mere fact that marijuana--like virtually every other
controlled substance regulated by the CSA--is used for medicinal purposes cannot
possibly serve to distinguish it from the core activities regulated by the CSA.
Nor can it serve as an "objective marke[r]" or "objective facto[r]"
to arbitrarily narrow the relevant class as the dissenters suggest, post, at ____,
162 L. Ed. 2d, at 38 (O'Connor, J., dissenting); post, at ____, 162 L. Ed. 2d, at
52 (Thomas, J., dissenting). More fundamentally, if, as the principal dissent contends,
the personal cultivation, possession, and use of marijuana for medicinal purposes
is beyond the "'outer limits' of Congress' Commerce Clause authority,"
post, at ____, 162 L. Ed. 2d, at 35 (O'Connor, J., dissenting), it must also be
true that such personal use of marijuana (or any other homegrown drug) for recreational
purposes is also beyond those "'outer limits,'" whether or not a State
elects to authorize or even regulate such use. Justice Thomas' separate dissent
suffers from the same sweeping implications. That is, the dissenters' rationale
logically extends to place any federal regulation (including quality, prescription,
or quantity controls) of any locally cultivated and possessed controlled substance
for any purpose beyond the "'outer limits'" of Congress' Commerce Clause
authority. One need not have a degree in economics to understand why a nationwide
exemption for the vast quantity of marijuana (or other drugs) locally cultivated
for personal use (which presumably would include use by friends, neighbors, and
family members) may have a substantial impact on the interstate market for this
extraordinarily popular substance. The congressional judgment that an exemption
for such a significant segment of the total market would undermine the orderly enforcement
of the entire regulatory scheme is entitled to a strong presumption of validity.
Indeed, that judgment is not only rational, but "visible to the [*29]
naked eye," Lopez, 514 U.S., at 563, 131 L. Ed. 2d 626, 115 S. Ct. 1624, under
any commonsense appraisal of the probable consequences of such an open-ended exemption.
Second, limiting the activity to marijuana possession and cultivation "in accordance
with state law" cannot serve to place respondents' activities beyond congressional
reach. The Supremacy Clause unambiguously provides that if there is any conflict
between federal and state law, federal law shall prevail. It is beyond peradventure
that federal power over commerce is "'superior to that of the States to provide
for the welfare or necessities of their inhabitants,'" however legitimate or
dire those necessities may be. Wirtz, 392 U.S., at 196, 20 L. Ed. 2d 1020, 88 S.
Ct. 2017 (quoting Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 426,
69 L. Ed. 352, 45 S. Ct. 176 (1925)). See also 392 U.S., at 195-196, 20 L. Ed. 2d
1020, 88 S. Ct. 2017; Wickard, 317 U.S., at 124, 87 L. Ed. 122, 63 S. Ct. 82 ("'[N]o
form of state activity can constitutionally thwart the regulatory power granted
by the commerce clause to Congress'"). Just as state acquiescence to federal
regulation cannot expand the bounds of the Commerce Clause, see, e.g., Morrison,
529 U.S., at 661-662, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (Breyer, J., dissenting)
(noting that 38 States requested federal intervention), so too state action cannot
circumscribe Congress' plenary commerce power. See United States v. Darby, 312 U.S.
100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941) ("That power can neither be enlarged
nor diminished by the exercise or non-exercise of state power"). [Footnote
38]
[*30] Respondents acknowledge this proposition, but nonetheless
contend that their activities were not "an essential part of a larger regulatory
scheme" because they had been "isolated by the State of California, and
[are] policed by the State of California," and thus remain "entirely separated
from the market." Tr. of Oral Arg. 27. The dissenters fall prey to similar
reasoning. See n. 38, supra this page, 162 L. Ed. 2d, at 26. The notion that California
law has surgically excised a discrete activity that is hermetically sealed off from
the larger interstate marijuana market is a dubious proposition, and, more importantly,
one that Congress could have rationally rejected.
Indeed, that the California exemptions will have a significant impact on both the
supply and demand sides of the market for marijuana is not just "plausible"
as the principal dissent concedes, post, at ____, 162 L. Ed. 2d, at 44 (O'Connor,
J., dissenting), it is readily apparent. The exemption for physicians provides them
with an economic incentive to grant their patients permission to use the drug. In
contrast to most prescriptions for legal drugs, which limit the dosage and duration
of the usage, under California law the doctor's permission to [*31]
recommend marijuana use is open-ended. The authority to grant permission whenever
the doctor determines that a patient is afflicted with "any other illness for
which marijuana provides relief," Cal. Health & Safety Code Ann. § 11362.5(b)(1)(A)
(West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude
that some recreational uses would be therapeutic. [Footnote 39] And our cases have
taught us that there are some unscrupulous physicians who overprescribe when it
is sufficiently profitable to do so. [Footnote 40]
The exemption for cultivation by patients and caregivers can only increase the supply
of marijuana in the California market. [Footnote 41] The likelihood that all such
production will [*32] promptly terminate when patients recover
or will precisely match the patients' medical needs during their convalescence seems
remote; whereas the danger that excesses will satisfy some of the admittedly enormous
demand for recreational use seems obvious. [Footnote 42] Moreover, that the national
and international narcotics trade has thrived in the face of vigorous criminal enforcement
efforts suggests that no small number of unscrupulous people will make use of the
California exemptions to serve their commercial ends whenever it is feasible to
do so. [Footnote 43] Taking into account the fact that California is only one of
at least nine States to have authorized the medical use of marijuana, a fact Justice
O'Connor's dissent conveniently disregards in arguing that the demonstrated effect
on commerce while admittedly "plausible" is ultimately "unsubstantiated,"
post, at ____, ____, 162 L. Ed. 2d, at 43, 45, Congress could have rationally concluded
that the aggregate impact on the national market of all the transactions exempted
from federal supervision is unquestionably substantial.
So, from the "separate and distinct" class of activities identified by
the Court of Appeals (and adopted by the dissenters), we are left with "the
intrastate, noncommercial cultivation, possession and use of marijuana." 352
F.3d at 1229. Thus the case for the exemption comes down to the claim that a locally
cultivated product that is used domestically [*33] rather than
sold on the open market is not subject to federal regulation. Given the findings
in the CSA and the undisputed magnitude of the commercial market for marijuana,
our decisions in Wickard v. Filburn and the later cases endorsing its reasoning
foreclose that claim.
V
Respondents also raise a substantive due process claim and seek to avail themselves
of the medical necessity defense. These theories of relief were set forth in their
complaint but were not reached by the Court of Appeals. We therefore do not address
the question whether judicial relief is available to respondents on these alternative
bases. We do note, however, the presence of another avenue of relief. As the Solicitor
General confirmed during oral argument, the statute authorizes procedures for the
reclassification of Schedule I drugs. But perhaps even more important than these
legal avenues is the democratic process, in which the voices of voters allied with
these respondents may one day be heard in the halls of Congress. Under the present
state of the law, however, the judgment of the Court of Appeals must be vacated.
The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
CONCUR BY: SCALIA
CONCUR
Justice Scalia, concurring in the judgment.
I agree with the Court's holding that the Controlled Substances Act (CSA) may validly
be applied to respondents' cultivation, distribution, and possession of marijuana
for personal, medicinal use. I write separately because my understanding of the
doctrinal foundation on which that holding rests is, if not inconsistent with that
of the Court, at least more nuanced.
Since Perez v. United States, 402 U.S. 146, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971),
our cases have mechanically recited that the Commerce Clause permits congressional
regulation of three categories: (1) the [*34] channels of interstate
commerce; (2) the instrumentalities of interstate commerce, and persons or things
in interstate commerce; and (3) activities that "substantially affect"
interstate commerce. Id., at 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357; see United States
v. Morrison, 529 U.S. 598, 608-609, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000); United
States v. Lopez, 514 U.S. 549, 558-559, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995);
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277,
69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981). The first two categories are self-evident,
since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden,
22 U.S. 1, 9 Wheat. 1, 189-190, 6 L. Ed. 23 (1824). The third category, however,
is different in kind, and its recitation without explanation is misleading and incomplete.
It is misleading because, unlike the channels, instrumentalities, and agents of
interstate commerce, activities that substantially affect interstate commerce are
not themselves part of interstate commerce, and thus the power to regulate them
cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged
since at least United States v. Coombs, 37 U.S. 72, 12 Pet. 72, 9 L. Ed. 1004 (1838),
Congress's regulatory authority over intrastate activities that are not themselves
part of interstate commerce (including activities that have a substantial effect
on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78,
9 L. Ed. 1004; Katzenbach v. McClung, 379 U.S. 294, 301-302, 13 L. Ed. 2d 290, 85
S. Ct. 377 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 86
L. Ed. 726, 62 S. Ct. 523 (1942); Shreveport Rate Cases, 234 U.S. 342, 353, 58 L.
Ed. 1341, 34 S. Ct. 833 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39-40,
39 L. Ed. 325, 15 S. Ct. 249 (1895) (Harlan, J., dissenting). [Footnote 1] And the
category of "activities that substantially affect interstate commerce,"
Lopez, supra, at 559, 131 L. Ed. 2d 626, 115 S. Ct. 1624, is incomplete because
the authority to enact laws necessary and proper for the regulation of interstate
commerce is not limited to laws [*35] governing intrastate activities
that substantially affect interstate commerce. 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.
I
Our cases show that the regulation of intrastate activities may be necessary to
and proper for the regulation of interstate commerce in two general circumstances.
Most directly, the commerce power permits Congress not only to devise rules for
the governance of commerce between States but also to facilitate interstate commerce
by eliminating potential obstructions, and to restrict it by eliminating potential
stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37, 81
L. Ed. 893, 57 S. Ct. 615 (1937). That is why the Court has repeatedly sustained
congressional legislation on the ground that the regulated activities had a substantial
effect on interstate commerce. See, e.g., Hodel, supra, at 281, 69 L. Ed. 2d 1,
101 S. Ct. 2352 (surface coal mining); Katzenbach, supra, at 300, 13 L. Ed. 2d 290,
85 S. Ct. 377 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 258, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964) (discrimination
by hotels); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219,
237, 92 L. Ed. 1328, 68 S. Ct. 996 (1948) (intrastate price-fixing); Board of Trade
of Chicago v. Olsen, 262 U.S. 1, 40, 67 L. Ed. 839, 43 S. Ct. 470 (1923) (activities
of a local grain exchange); Stafford v. Wallace, 258 U.S. 495, 517, 524-525, 66
L. Ed. 735, 42 S. Ct. 397 (1922) (intrastate transactions at stockyard). Lopez and
Morrison recognized the expansive scope of Congress's authority in this regard:
"[T]he pattern is clear. Where economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained." Lopez, supra,
at 560, 131 L. Ed. 2d 626, 115 S. Ct. 1624; Morrison, supra, at 610, 146 L. Ed.
2d 658, 120 S. Ct. 1740 (same).
This principle is not without limitation. In Lopez and Morrison, the Court--conscious
of the potential of the "substantially affects" test to "'obliterate
the distinction between what is national and what is local,'" Lopez, supra,
at 566-567, 131 L. Ed. 2d 626, 115 S. Ct. 1624 [*36] (quoting A.
L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554, 79 L. Ed. 1570,
55 S. Ct. 837 (1935)); see also Morrison, supra, at 615-616, 146 L. Ed. 2d 658,
120 S. Ct. 1740 --rejected the argument that Congress may regulate noneconomic activity
based solely on the effect that it may have on interstate commerce through a remote
chain of inferences. Lopez, supra, at 564-566, 131 L. Ed. 2d 626, 115 S. Ct. 1624;
Morrison, supra, at 617-618, 146 L. Ed. 2d 658, 120 S. Ct. 1740. "[I]f we were
to accept [such] arguments," the Court reasoned in Lopez, "we are hard
pressed to posit any activity by an individual that Congress is without power to
regulate." Lopez, supra, at 564, 131 L. Ed. 2d 626, 115 S. Ct. 1624; see also
Morrison, supra, at 615-616, 146 L. Ed. 2d 658, 120 S. Ct. 1740. Thus, although
Congress's authority to regulate intrastate activity that substantially affects
interstate commerce is broad, it does not permit the Court to "pile inference
upon inference," Lopez, supra, at 567, 131 L. Ed. 2d 626, 115 S. Ct. 1624,
in order to establish that noneconomic activity has a substantial effect on interstate
commerce.
As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws
necessary and proper for the regulation of interstate commerce is not limited to
laws directed against economic activities that have a substantial effect on interstate
commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized
that it could be regulated as "an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the intrastate
activity were regulated." 514 U.S., at 561, 131 L. Ed. 2d 626, 115 S. Ct. 1624.
This statement referred to those cases permitting the regulation of intrastate activities
"which in a substantial way interfere with or obstruct the exercise of the
granted power." Wrightwood Dairy Co., 315 U.S., at 119, 86 L. Ed. 726, 62 S.
Ct. 523; see also United States v. Darby, 312 U.S. 100, 118-119, 85 L. Ed. 609,
61 S. Ct. 451 (1941); Shreveport Rate Cases, 234 U.S., at 353, 58 L. Ed. 1341, 34
S. Ct. 833. As the Court put it in Wrightwood Dairy, where Congress has the authority
to enact a regulation of interstate commerce, "it possesses every power needed
to make that regulation effective." 315 U.S., at 118-119, 86 L. Ed. 726, 62
S. Ct. 523.
[*37] Although this power "to make . . . regulation effective"
commonly overlaps with the authority to regulate economic activities that substantially
affect interstate commerce, [Footnote 2] and may in some cases have been confused
with that authority, the two are distinct. 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, 131
L. Ed. 2d 626, 115 S. Ct. 1624. 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, 85 L. Ed. 609, 61 S. Ct. 451.
In Darby, for instance, the Court explained that "Congress, having . . . adopted
the policy of excluding from interstate commerce all goods produced for the commerce
which do not conform to the specified labor standards," 312 U.S., at 121, 85
L. Ed. 609, 61 S. Ct. 451, could not only require employers engaged in the production
of goods for interstate commerce to conform to wage and hour standards, id., at
119-121, 85 L. Ed. 609, 61 S. Ct. 451, but could also require those employers to
keep employment records in order to demonstrate compliance with the regulatory scheme,
id., at 125, 85 L. Ed. 609, 61 S. Ct. 451. While the Court sustained the former
regulation on the alternative ground that the activity it regulated could have a
"great effect" on interstate commerce, id., at 122-123, 85 L. Ed. 609,
61 S. Ct. 451, it affirmed the latter on the sole ground that "[t]he requirement
[*38] for records even of the intrastate transaction is an appropriate
means to a legitimate end," id., at 125, 85 L. Ed. 609, 61 S. Ct. 451.
As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause
does not give "Congress . . . the authority to regulate the internal commerce
of a State, as such," but it does allow Congress "to take all measures
necessary or appropriate to" the effective regulation of the interstate market,
"although intrastate transactions . . . may thereby be controlled." 234
U.S., at 353, 58 L. Ed. 1341, 34 S. Ct. 833; see also Jones & Laughlin Steel
Corp., 301 U.S., at 38, 81 L. Ed. 893, 57 S. Ct. 615 (the logic of the Shreveport
Rate Cases is not limited to instrumentalities of commerce).
II
Today's principal dissent objects that, by permitting Congress to regulate activities
necessary to effective interstate regulation, the Court reduces Lopez and Morrison
to "little more than a drafting guide." Post, at ____, 162 L. Ed. 2d,
at 38 (opinion of O'Connor, J.). I think that criticism unjustified. Unlike the
power to regulate activities that have a substantial effect on interstate commerce,
the power to enact laws enabling effective regulation of interstate commerce can
only be exercised in conjunction with congressional regulation of an interstate
market, and it extends only to those measures necessary to make the interstate regulation
effective. As Lopez itself states, and the Court affirms today, Congress may regulate
noneconomic intrastate activities only where the failure to do so "could .
. . undercut" its regulation of interstate commerce. See Lopez, supra, at 561,
131 L. Ed. 2d 626, 115 S. Ct. 1624; ante, at ____, ____, ____, 162 L. Ed. 2d, at
19, 23, 24. This is not a power that threatens to obliterate the line between "what
is truly national and what is truly local." Lopez, supra, at 567-568, 131 L.
Ed. 2d 626, 115 S. Ct. 1624.
Lopez and Morrison affirm that Congress may not regulate certain "purely local"
activity within the States based solely on the attenuated effect that such activity
may have in the interstate market. But those decisions do not declare noneconomic
intrastate activities to be categorically beyond [*39] the reach
of the Federal Government. Neither case involved the power of Congress to exert
control over intrastate activities in connection with a more comprehensive scheme
of regulation; Lopez expressly disclaimed that it was such a case, 514 U.S., at
561, 131 L. Ed. 2d 626, 115 S. Ct. 1624, and Morrison did not even discuss the possibility
that it was. (The Court of Appeals in Morrison made clear that it was not. See Brzonkala
v. Virginia Polytechnic Inst., 169 F.3d 820, 834-835 (CA4 1999) (en banc).) To dismiss
this distinction as "superficial and formalistic," see post, at ____,
162 L. Ed. 2d, at 38 (O'Connor, J., dissenting), is to misunderstand the nature
of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation
of its enumerated powers that are not within its authority to enact in isolation.
See McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 421-422, 4 L. Ed. 579 (1819).
And there are other restraints upon the Necessary and Proper Clause authority. As
Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional
and legitimate, the means must be "appropriate" and "plainly adapted"
to that end. Id., at 421, 4 L. Ed. 579. Moreover, they may not be otherwise "prohibited"
and must be "consistent with the letter and spirit of the constitution."
Ibid. These phrases are not merely hortatory. For example, cases such as Printz
v. United States, 521 U.S. 898, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997), and New
York v. United States, 505 U.S. 144, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992),
affirm that a law is not "'proper for carrying into Execution the Commerce
Clause'" "[w]hen [it] violates [a constitutional] principle of state sovereignty."
Printz, supra, at 923-924, 138 L. Ed. 2d 914, 117 S. Ct. 2365; see also New York,
supra, at 166, 120 L. Ed. 2d 120, 112 S. Ct. 2408.
III
The application of these principles to the case before us is straightforward. In
the CSA, Congress has undertaken to extinguish the interstate market in Schedule
I controlled substances, including marijuana. The Commerce Clause unquestionably
permits this. The power to regulate interstate commerce "extends not only to
those regulations which aid, [*40] foster and protect the commerce,
but embraces those which prohibit it." Darby, 312 U.S., at 113, 85 L. Ed. 609,
61 S. Ct. 451. See also Hipolite Egg Co. v. United States, 220 U.S. 45, 58, 55 L.
Ed. 364, 31 S. Ct. 364 (1911); Lottery Case, 188 U.S. 321, 354, 47 L. Ed. 492, 23
S. Ct. 321 (1903). To effectuate its objective, Congress has prohibited almost all
intrastate activities related to Schedule I substances--both economic activities
(manufacture, distribution, possession with the intent to distribute) and noneconomic
activities (simple possession). See 21 U.S.C. §§ 841(a), 844(a). That simple possession
is a noneconomic activity is immaterial to whether it can be prohibited as a necessary
part of a larger regulation. Rather, Congress's authority to enact all of these
prohibitions of intrastate controlled-substance activities depends only upon whether
they are appropriate means of achieving the legitimate end of eradicating Schedule
I substances from interstate commerce.
By this measure, I think the regulation must be sustained. Not only is it impossible
to distinguish "controlled substances manufactured and distributed intrastate"
from "controlled substances manufactured and distributed interstate,"
but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible
commodities. As the Court explains, marijuana that is grown at home and possessed
for personal use is never more than an instant from the interstate market--and this
is so whether or not the possession is for medicinal use or lawful use under the
laws of a particular State. [Fotnote 3] [*41] See ante, at ____
- ____, 162 L. Ed. 2d, at 24-29. Congress need not accept on faith that state law
will be effective in maintaining a strict division between a lawful market for "medical"
marijuana and the more general marijuana market. See id., at ____ - ____, 162 L.
Ed. 2d, at 26-27, and n 38. "To impose on [Congress] the necessity of resorting
to means which it cannot control, which another government may furnish or withhold,
would render its course precarious, the result of its measures uncertain, and create
a dependence on other governments, which might disappoint its most important designs,
and is incompatible with the language of the constitution." McCulloch, supra,
at 424, 4 L. Ed. 579.
Finally, neither respondents nor the dissenters suggest any violation of state sovereignty
of the sort that would render this regulation "inappropriate," id., at
421, 4 L. Ed. 579 --except to argue that the CSA regulates an area typically left
to state regulation. See post, at ____ - ____, ____, 162 L. Ed. 2d, at 38-39, 41
(opinion of O'Connor, J.); post, at ____ - ____, 162 L. Ed. 2d, at 50 (opinion of
Thomas, J.); Brief for Respondents 39-42. That is not enough to render federal regulation
an inappropriate means. The Court has repeatedly recognized that, if authorized
by the commerce power, Congress may regulate private endeavors "even when [that
regulation] may pre-empt express state-law determinations contrary to the result
which has commended itself to the collective wisdom of Congress." National
League of Cities v. Usery, 426 U.S. 833, 840, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976);
see Cleveland v. United States, 329 U.S. 14, 19, 91 L. Ed. 12, 67 S. Ct. 13 (1946);
McCulloch, supra, at 424, 4 L. Ed. 579. At bottom, respondents' [*42]
state-sovereignty argument reduces to the contention that federal regulation of
the activities permitted by California's Compassionate Use Act is not sufficiently
necessary to be "necessary and proper" to Congress's regulation of the
interstate market. For the reasons given above and in the Court's opinion, I cannot
agree.
* * *
I thus agree with the Court that, however the class of regulated activities is subdivided,
Congress could reasonably conclude that its objective of prohibiting marijuana from
the interstate market "could be undercut" if those activities were excepted
from its general scheme of regulation. See Lopez, 514 U.S., at 561, 131 L. Ed. 2d
626, 115 S. Ct. 1624. That is sufficient to authorize the application of the CSA
to respondents.
DISSENT BY: O'CONNOR; THOMAS
DISSENT
Justice O'Connor, with whom the Chief Justice and Justice Thomas join as to all
but Part III, dissenting.
We enforce the "outer limits" of Congress' Commerce Clause authority not
for their own sake, but to protect historic spheres of state sovereignty from excessive
federal encroachment and thereby to maintain the distribution of power fundamental
to our federalist system of government. United States v. Lopez, 514 U.S. 549, 557,
131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995); NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 37, 81 L. Ed. 893, 57 S. Ct. 615 (1937). One of federalism's chief virtues,
of course, is that it promotes innovation by allowing for the possibility that "a
single courageous State may, if its citizens choose, serve as a laboratory; and
try novel social and economic experiments without risk to the rest of the country."
New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 76 L. Ed. 747, 52 S. Ct. 371 (1932)
(Brandeis, J., dissenting).
This case exemplifies the role of States as laboratories. The States' core police
powers have always included authority to define criminal law and to protect the
health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U.S. 619,
635, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993); Whalen v. Roe, 429 U.S. 589, 603,
n. 30, 51 L. Ed. 2d 64, 97 S. Ct. 869 [*43] (1977). Exercising
those powers, California (by ballot initiative and then by legislative codification)
has come to its own conclusion about the difficult and sensitive question of whether
marijuana should be available to relieve severe pain and suffering. Today the Court
sanctions an application of the federal Controlled Substances Act that extinguishes
that experiment, without any proof that the personal cultivation, possession, and
use of marijuana for medicinal purposes, if economic activity in the first place,
has a substantial effect on interstate commerce and is therefore an appropriate
subject of federal regulation. In so doing, the Court announces a rule that gives
Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause
--nestling questionable assertions of its authority into comprehensive regulatory
schemes--rather than with precision. That rule and the result it produces in this
case are irreconcilable with our decisions in Lopez, supra, and United States v.
Morrison, 529 U.S. 598, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000). Accordingly I
dissent.
I
In Lopez, we considered the constitutionality of the Gun-Free School Zones Act of
1990, which made it a federal offense "for any individual knowingly to possess
a firearm . . . at a place the individual knows, or has reasonable cause to believe,
is a school zone," 18 U.S.C. § 922(q)(2)(A). We explained that "Congress'
commerce authority includes the power to regulate those activities having a substantial
relation to interstate commerce . . ., i.e., those activities that substantially
affect interstate commerce." 514 U.S., at 558-559, 131 L. Ed. 2d 626, 115 S.
Ct. 1624 (citation omitted). This power derives from the conjunction of the Commerce
Clause and the Necessary and Proper Clause. Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, 585-586, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985) (O'Connor,
J., dissenting) (explaining that United States v. Darby, 312 U.S. 100, 85 L. Ed.
609, 61 S. Ct. 451 (1941), United States v. Wrightwood Dairy Co., 315 U.S. 110,
86 L. Ed. 726, 62 S. Ct. 523 (1942), and Wickard v. Filburn, 317 U.S. 111, 87 L.
Ed. 122, 63 S. Ct. 82 (1942), [*44] based their expansion of the
commerce power on the Necessary and Proper Clause, and that "the reasoning
of these cases underlies every recent decision concerning the reach of Congress
to activities affecting interstate commerce"); ante, at ____, 162 L. Ed. 2d,
at 30 (Scalia, J., concurring in judgment). We held in Lopez that the Gun-Free School
Zones Act could not be sustained as an exercise of that power.
Our decision about whether gun possession in school zones substantially affected
interstate commerce turned on four considerations. Lopez, supra, at 559-567, 131
L. Ed. 2d 626, 115 S. Ct. 1624; see also Morrison, supra, at 609-613, 146 L. Ed.
2d 658, 120 S. Ct. 1740. First, we observed that our "substantial effects"
cases generally have upheld federal regulation of economic activity that affected
interstate commerce, but that § 922(q) was a criminal statute having "nothing
to do with 'commerce' or any sort of economic enterprise." Lopez, 514 U.S.,
at 561, 131 L. Ed. 2d 626, 115 S. Ct. 1624. In this regard, we also noted that "[s]ection
922(q) is not an essential part of a larger regulation of economic activity, in
which the regulatory scheme could be undercut unless the intrastate activity were
regulated. It cannot, therefore, be sustained under our cases upholding regulations
of activities that arise out of or are connected with a commercial transaction,
which viewed in the aggregate, substantially affects interstate commerce."
Ibid. Second, we noted that the statute contained no express jurisdictional requirement
establishing its connection to interstate commerce. Ibid.
Third, we found telling the absence of legislative findings about the regulated
conduct's impact on interstate commerce. We explained that while express legislative
findings are neither required nor, when provided, dispositive, findings "enable
us to evaluate the legislative judgment that the activity in question substantially
affect[s] interstate commerce, even though no such substantial effect [is] visible
to the naked eye." Id., at 563, 131 L. Ed. 2d 626, 115 S. Ct. 1624. Finally,
we rejected as too attenuated the Government's argument that firearm possession
in school zones could result in violent crime which in turn could [*45]
adversely affect the national economy. Id., at 563-567, 131 L. Ed. 2d 626, 115 S.
Ct. 1624. The Constitution, we said, does not tolerate reasoning that would "convert
congressional authority under the Commerce Clause to a general police power of the
sort retained by the States." Id., at 567, 131 L. Ed. 2d 626, 115 S. Ct. 1624.
Later in Morrison, supra, we relied on the same four considerations to hold that
§ 40302 of the Violence Against Women Act of 1994, 42 U.S.C. § 13981, exceeded Congress'
authority under the Commerce Clause.
In my view, the case before us is materially indistinguishable from Lopez and Morrison
when the same considerations are taken into account.
II
A
What is the relevant conduct subject to Commerce Clause analysis in this case? The
Court takes its cues from Congress, applying the above considerations to the activity
regulated by the Controlled Substances Act (CSA) in general. The Court's decision
rests on two facts about the CSA: (1) Congress chose to enact a single statute providing
a comprehensive prohibition on the production, distribution, and possession of all
controlled substances, and (2) Congress did not distinguish between various forms
of intrastate noncommercial cultivation, possession, and use of marijuana. See 21
U.S.C. §§ 841(a)(1), 844(a). Today's decision suggests that the federal regulation
of local activity is immune to Commerce Clause challenge because Congress chose
to act with an ambitious, all-encompassing statute, rather than piecemeal. In my
view, allowing Congress to set the terms of the constitutional debate in this way,
i.e., by packaging regulation of local activity in broader schemes, is tantamount
to removing meaningful limits on the Commerce Clause.
The Court's principal means of distinguishing Lopez from this case is to observe
that the Gun-Free School Zones Act of 1990 was a "brief, single-subject statute,"
ante, at ____, 162 L. Ed. 2d, at 22, see also ante, at ____, 162 L. Ed. 2d, at 21,
[*46] whereas the CSA is "a lengthy and detailed statute creating
a comprehensive framework for regulating the production, distribution, and possession
of five classes of 'controlled substances,'" ibid. Thus, according to the Court,
it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing
local activity (there gun possession in school zones), whereas the local activity
that the CSA targets (in this case cultivation and possession of marijuana for personal
medicinal use) cannot be separated from the general drug control scheme of which
it is a part.
Today's decision allows Congress to regulate intrastate activity without check,
so long as there is some implication by legislative design that regulating intrastate
activity is essential (and the Court appears to equate "essential" with
"necessary") to the interstate regulatory scheme. Seizing upon our language
in Lopez that the statute prohibiting gun possession in school zones was "not
an essential part of a larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated," 514
U.S., at 561, 131 L. Ed. 2d 626, 115 S. Ct. 1624, the Court appears to reason that
the placement of local activity in a comprehensive scheme confirms that it is essential
to that scheme. Ante, at ____ - ____, 162 L. Ed. 2d, at 23. If the Court is right,
then Lopez stands for nothing more than a drafting guide: Congress should have described
the relevant crime as "transfer or possession of a firearm anywhere in the
nation"--thus including commercial and noncommercial activity, and clearly
encompassing some activity with assuredly substantial effect on interstate commerce.
Had it done so, the majority hints, we would have sustained its authority to regulate
possession of firearms in school zones. Furthermore, today's decision suggests we
would readily sustain a congressional decision to attach the regulation of intrastate
activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme.
If so, the Court invites increased federal regulation of local activity even if,
as it suggests, Congress would not enact a new interstate [*47]
scheme exclusively for the sake of reaching intrastate activity, see ante, at ____,
n. 34, 162 L. Ed. 2d, at 23; ante, at ____, 162 L. Ed. 2d, at 32 (Scalia, J., concurring
in judgment).
I cannot agree that our decision in Lopez contemplated such evasive or overbroad
legislative strategies with approval. Until today, such arguments have been made
only in dissent. See Morrison, 529 U.S., at 657, 146 L. Ed. 2d 658, 120 S. Ct. 1740
(Breyer, J., dissenting) (given that Congress can regulate "'an essential part
of a larger regulation of economic activity,'" "can Congress save the
present law by including it, or much of it, in a broader 'Safe Transport' or 'Worker
Safety' act?"). Lopez and Morrison did not indicate that the constitutionality
of federal regulation depends on superficial and formalistic distinctions. Likewise
I did not understand our discussion of the role of courts in enforcing outer limits
of the Commerce Clause for the sake of maintaining the federalist balance our Constitution
requires, see Lopez, 514 U.S., at 557, 131 L. Ed. 2d 626, 115 S. Ct. 1624; id.,
at 578, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (Kennedy, J., concurring), as a signal
to Congress to enact legislation that is more extensive and more intrusive into
the domain of state power. If the Court always defers to Congress as it does today,
little may be left to the notion of enumerated powers.
The hard work for courts, then, is to identify objective markers for confining the
analysis in Commerce Clause cases. Here, respondents challenge the constitutionality
of the CSA as applied to them and those similarly situated. I agree with the Court
that we must look beyond respondents' own activities. Otherwise, individual litigants
could always exempt themselves from Commerce Clause regulation merely by pointing
to the obvious--that their personal activities do not have a substantial effect
on interstate commerce. See Maryland v. Wirtz, 392 U.S. 183, 193, 20 L. Ed. 2d 1020,
88 S. Ct. 2017 (1968); Wickard, 317 U.S., at 127-128, 87 L. Ed. 122, 63 S. Ct. 82.
The task is to identify a mode of analysis that allows Congress to regulate more
than nothing (by declining to reduce each case to its litigants) and less than everything
(by declining to let Congress set the [*48] terms of analysis).
The analysis may not be the same in every case, for it depends on the regulatory
scheme at issue and the federalism concerns implicated. See generally Lopez, 514
U.S., at 567, 131 L. Ed. 2d 626, 115 S. Ct. 1624; id., at 579, 131 L. Ed. 2d 626,
115 S. Ct. 1624 (Kennedy, J., concurring).
A number of objective markers are available to confine the scope of constitutional
review here. Both federal and state legislation--including the CSA itself, the California
Compassionate Use Act, and other state medical marijuana legislation--recognize
that medical and nonmedical (i.e., recreational) uses of drugs are realistically
distinct and can be segregated, and regulate them differently. See 21 U.S.C. § 812;
Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2005); ante, at ____, 162
L. Ed. 2d, at 11 (opinion of the Court). Respondents challenge only the application
of the CSA to medicinal use of marijuana. Cf. United States v. Raines, 362 U.S.
17, 20-22, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1960) (describing our preference for
as-applied rather than facial challenges). Moreover, because fundamental structural
concerns about dual sovereignty animate our Commerce Clause cases, it is relevant
that this case involves the interplay of federal and state regulation in areas of
criminal law and social policy, where "States lay claim by right of history
and expertise." Lopez, supra, at 583, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (Kennedy,
J., concurring); see also Morrison, supra, at 617-619, 146 L. Ed. 2d 658, 120 S.
Ct. 1740; Lopez, supra, at 580, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (Kennedy, J.,
concurring) ("The statute before us upsets the federal balance to a degree
that renders it an unconstitutional assertion of the commerce power, and our intervention
is required"); cf. Garcia, 469 U.S., at 586, 83 L. Ed. 2d 1016, 105 S. Ct.
1005 (O'Connor, J., dissenting) ("[S]tate autonomy is a relevant factor in
assessing the means by which Congress exercises its powers" under the Commerce
Clause). California, like other States, has drawn on its reserved powers to distinguish
the regulation of medicinal marijuana. To ascertain whether Congress' encroachment
is constitutionally justified in this case, then, I would focus here on the personal
cultivation, possession, and use of marijuana for medicinal purposes.
[*49] B
Having thus defined the relevant conduct, we must determine whether, under our precedents,
the conduct is economic and, in the aggregate, substantially affects interstate
commerce. Even if intrastate cultivation and possession of marijuana for one's own
medicinal use can properly be characterized as economic, and I question whether
it can, it has not been shown that such activity substantially affects interstate
commerce. Similarly, it is neither self-evident nor demonstrated that regulating
such activity is necessary to the interstate drug control scheme.
The Court's definition of economic activity is breathtaking. It defines as economic
any activity involving the production, distribution, and consumption of commodities.
And it appears to reason that when an interstate market for a commodity exists,
regulating the intrastate manufacture or possession of that commodity is constitutional
either because that intrastate activity is itself economic, or because regulating
it is a rational part of regulating its market. Putting to one side the problem
endemic to the Court's opinion--the shift in focus from the activity at issue in
this case to the entirety of what the CSA regulates, see Lopez, supra, at 565, 131
L. Ed. 2d 626, 115 S. Ct. 1624 ("depending on the level of generality, any
activity can be looked upon as commercial")--the Court's definition of economic
activity for purposes of Commerce Clause jurisprudence threatens to sweep all of
productive human activity into federal regulatory reach.
The Court uses a dictionary definition of economics to skirt the real problem of
drawing a meaningful line between "what is national and what is local,"
Jones & Laughlin Steel, 301 U.S., at 37, 81 L. Ed. 893, 57 S. Ct. 615. It will
not do to say that Congress may regulate noncommercial activity simply because it
may have an effect on the demand for commercial goods, or because the noncommercial
endeavor can, in some sense, substitute for commercial activity. Most commercial
goods or services have some sort of privately producible analogue. Home care
[*50] substitutes for daycare. Charades games substitute for movie
tickets. Backyard or windowsill gardening substitutes for going to the supermarket.
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. We have already rejected
the result that would follow--a federal police power. Lopez, supra, at 564, 131
L. Ed. 2d 626, 115 S. Ct. 1624.
In Lopez and Morrison, we suggested that economic activity usually relates directly
to commercial activity. See Morrison, 529 U.S., at 611, n. 4, 146 L. Ed. 2d 658,
120 S. Ct. 1740 (intrastate activities that have been within Congress' power to
regulate have been "of an apparent commercial character"); Lopez, 514
U.S., at 561, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (distinguishing the Gun-Free School
Zones Act of 1990 from "activities that arise out of or are connected with
a commercial transaction"). The homegrown cultivation and personal possession
and use of marijuana for medicinal purposes has no apparent commercial character.
Everyone agrees that the marijuana at issue in this case was never in the stream
of commerce, and neither were the supplies for growing it. (Marijuana is highly
unusual among the substances subject to the CSA in that it can be cultivated without
any materials that have traveled in interstate commerce.) Lopez makes clear that
possession is not itself commercial activity. Ibid. And respondents have not come
into possession by means of any commercial transaction; they have simply grown,
in their own homes, marijuana for their own use, without acquiring, buying, selling,
or bartering a thing of value. Cf. id., at 583, 131 L. Ed. 2d 626, 115 S. Ct. 1624
(Kennedy, J., concurring) ("The statute now before us forecloses the States
from experimenting . . . and it does so by regulating an activity beyond the realm
of commerce in the ordinary and usual sense of that term").
The Court suggests that Wickard, which we have identified as "perhaps the most
far reaching example of Commerce Clause authority over intrastate activity,"
Lopez, supra, at 560, 131 L. Ed. 2d 626, 115 S. Ct. 1624, established federal regulatory
power over any home consumption of a commodity for which a national market exists.
[*51] I disagree. Wickard involved a challenge to the Agricultural
Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set
national quotas on wheat production, and penalties for excess production. 317 U.S.,
at 115-116, 87 L. Ed. 122, 63 S. Ct. 82. The AAA itself confirmed that Congress
made an explicit choice not to reach--and thus the Court could not possibly have
approved of federal control over--small-scale, noncommercial wheat farming. In contrast
to the CSA's limitless assertion of power, Congress provided an exemption within
the AAA for small producers. When Filburn planted the wheat at issue in Wickard,
the statute exempted plantings less than 200 bushels (about six tons), and when
he harvested his wheat it exempted plantings less than six acres. Id., at 130, n.
30, 87 L. Ed. 122, 63 S. Ct. 82. Wickard, then, did not extend Commerce Clause authority
to something as modest as the home cook's herb garden. This is not to say that Congress
may never regulate small quantities of commodities possessed or produced for personal
use, or to deny that it sometimes needs to enact a zero tolerance regime for such
commodities. It is merely to say that Wickard did not hold or imply that small-scale
production of commodities is always economic, and automatically within Congress'
reach.
Even assuming that economic activity is at issue in this case, the Government has
made no showing in fact that the possession and use of homegrown marijuana for medical
purposes, in California or elsewhere, has a substantial effect on interstate commerce.
Similarly, the Government has not shown that regulating such activity is necessary
to an interstate regulatory scheme. Whatever the specific theory of "substantial
effects" at issue (i.e., whether the activity substantially affects interstate
commerce, whether its regulation is necessary to an interstate regulatory scheme,
or both), a concern for dual sovereignty requires that Congress' excursion into
the traditional domain of States be justified.
That is why characterizing this as a case about the Necessary and Proper Clause
does not change the analysis significantly. [*52] Congress must
exercise its authority under the Necessary and Proper Clause in a manner consistent
with basic constitutional principles. Garcia, 469 U.S., at 585, 83 L. Ed. 2d 1016,
105 S. Ct. 1005 (O'Connor, J., dissenting) ("It is not enough that the 'end
be legitimate'; the means to that end chosen by Congress must not contravene the
spirit of the Constitution"). As Justice Scalia recognizes, see ante, at ____,
162 L. Ed. 2d, at 33 (opinion concurring in judgment), Congress cannot use its authority
under the Clause to contravene the principle of state sovereignty embodied in the
Tenth Amendment. Ibid. Likewise, that authority must be used in a manner consistent
with the notion of enumerated powers--a structural principle that is as much part
of the Constitution as the Tenth Amendment's explicit textual command. Accordingly,
something more than mere assertion is required when Congress purports to have power
over local activity whose connection to an intrastate market is not self-evident.
Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional
federal regulation. Cf. Printz v. United States, 521 U.S. 898, 923, 138 L. Ed. 2d
914, 117 S. Ct. 2365 (1997) (the Necessary and Proper Clause is "the last,
best hope of those who defend ultra vires congressional action"). Indeed, if
it were enough in "substantial effects" cases for the Court to supply
conceivable justifications for intrastate regulation related to an interstate market,
then we could have surmised in Lopez that guns in school zones are "never more
than an instant from the interstate market" in guns already subject to extensive
federal regulation, ante, at ____, 162 L. Ed. 2d, at 34 (Scalia, J., concurring
in judgment), recast Lopez as a Necessary and Proper Clause case, and thereby upheld
the Gun-Free School Zones Act of 1990. (According to the Court's and the concurrence's
logic, for example, the Lopez court should have reasoned that the prohibition on
gun possession in school zones could be an appropriate means of effectuating a related
prohibition on "sell[ing]" or "deliver[ing]" firearms or ammunition
to "any individual who the licensee knows or has reasonable cause to believe
is less than [*53] eighteen years of age." 18 U.S.C. § 922(b)(1)
(1988 ed., Supp. II).)
There is simply no evidence that homegrown medicinal marijuana users constitute,
in the aggregate, a sizable enough class to have a discernable, let alone substantial,
impact on the national illicit drug market--or otherwise to threaten the CSA regime.
Explicit evidence is helpful when substantial effect is not "visible to the
naked eye." See Lopez, 514 U.S., at 563, 131 L. Ed. 2d 626, 115 S. Ct. 1624.
And here, in part because common sense suggests that medical marijuana users may
be limited in number and that California's Compassionate Use Act and similar state
legislation may well isolate activities relating to medicinal marijuana from the
illicit market, the effect of those activities on interstate drug traffic is not
self-evidently substantial.
In this regard, again, this case is readily distinguishable from Wickard. To decide
whether the Secretary could regulate local wheat farming, the Court looked to "the
actual effects of the activity in question upon interstate commerce." 317 U.S.,
at 120, 87 L. Ed. 122, 63 S. Ct. 82. Critically, the Court was able to consider
"actual effects" because the parties had "stipulated a summary of
the economics of the wheat industry." Id., at 125, 87 L. Ed. 122, 63 S. Ct.
82. After reviewing in detail the picture of the industry provided in that summary,
the Court explained that consumption of homegrown wheat was the most variable factor
in the size of the national wheat crop, and that on-site consumption could have
the effect of varying the amount of wheat sent to market by as much as 20 percent.
Id., at 127, 87 L. Ed. 122, 63 S. Ct. 82. With real numbers at hand, the Wickard
Court could easily conclude that "a factor of such volume and variability as
home-consumed wheat would have a substantial influence on price and market conditions"
nationwide. Id., at 128, 87 L. Ed. 122, 63 S. Ct. 82; see also id., at 128-129,
87 L. Ed. 122, 63 S. Ct. 82 ("This record leaves us in no doubt" about
substantial effects).
The Court recognizes that "the record in the Wickard case itself established
the causal connection between the production [*54] for local use
and the national market" and argues that "we have before us findings by
Congress to the same effect." Ante, at ____, 162 L. Ed. 2d, at 21 (emphasis
added). The Court refers to a series of declarations in the introduction to the
CSA saying that (1) local distribution and possession of controlled substances causes
"swelling" in interstate traffic; (2) local production and distribution
cannot be distinguished from interstate production and distribution; (3) federal
control over intrastate incidents "is essential to effective control"
over interstate drug trafficking. 21 U.S.C. §§ 801(1)-(6). These bare declarations
cannot be compared to the record before the Court in Wickard.
They amount to nothing more than a legislative insistence that the regulation of
controlled substances must be absolute. They are asserted without any supporting
evidence--descriptive, statistical, or otherwise. "[S]imply because Congress
may conclude a particular activity substantially affects interstate commerce does
not necessarily make it so." Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U.S. 264, 311, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981) (Rehnquist,
J., concurring in judgment). Indeed, if declarations like these suffice to justify
federal regulation, and if the Court today is right about what passes rationality
review before us, then our decision in Morrison should have come out the other way.
In that case, Congress had supplied numerous findings regarding the impact gender-motivated
violence had on the national economy. 529 U.S., at 614, 146 L. Ed. 2d 658, 120 S.
Ct. 1740; id., at 628-636, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (Souter, J., dissenting)
(chronicling findings). But, recognizing that "'"[w]hether particular
operations affect interstate commerce sufficiently to come under the constitutional
power of Congress to regulate them is ultimately a judicial rather than a legislative
question,"'" we found Congress' detailed findings inadequate. Id., at
614, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (quoting Lopez, supra, at 557, n. 2, 131
L. Ed. 2d 626, 115 S. Ct. 1624, in turn quoting Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 273, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964) (Black,
J., concurring)). If, as the Court claims, today's decision does not [*55]
break with precedent, how can it be that voluminous findings, documenting extensive
hearings about the specific topic of violence against women, did not pass constitutional
muster in Morrison, while the CSA's abstract, unsubstantiated, generalized findings
about controlled substances do?
In particular, the CSA's introductory declarations are too vague and unspecific
to demonstrate that the federal statutory scheme will be undermined if Congress
cannot exert power over individuals like respondents. The declarations are not even
specific to marijuana. (Facts about substantial effects may be developed in litigation
to compensate for the inadequacy of Congress' findings; in part because this case
comes to us from the grant of a preliminary injunction, there has been no such development.)
Because here California, like other States, has carved out a limited class of activity
for distinct regulation, the inadequacy of the CSA's findings is especially glaring.
The California Compassionate Use Act exempts from other state drug laws patients
and their caregivers "who posses[s] or cultivat[e] marijuana for the personal
medical purposes of the patient upon the written or oral recommendation of a physician"
to treat a list of serious medical conditions. Cal. Health & Safety Code Ann.
§§ 11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis added). Compare ibid. with,
e.g., § 11357(b) (West 1991) (criminalizing marijuana possession in excess of 28.5
grams); § 11358 (criminalizing marijuana cultivation). The Act specifies that it
should not be construed to supersede legislation prohibiting persons from engaging
in acts dangerous to others, or to condone the diversion of marijuana for nonmedical
purposes. § 11362.5(b)(2) (West Supp. 2005). To promote the Act's operation and
to facilitate law enforcement, California recently enacted an identification card
system for qualified patients. §§ 11362.7-11362.83. We generally assume States enforce
their laws, see Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781,
795, 101 L. Ed. 2d 669, 108 S. Ct. 2667 (1988), and have no reason to think otherwise
here.
[*56] The Government has not overcome empirical doubt that the
number of Californians engaged in personal cultivation, possession, and use of medical
marijuana, or the amount of marijuana they produce, is enough to threaten the federal
regime. Nor has it shown that Compassionate Use Act marijuana users have been or
are realistically likely to be responsible for the drug's seeping into the market
in a significant way. The Government does cite one estimate that there were over
100,000 Compassionate Use Act users in California in 2004, Reply Brief for Petitioners
16, but does not explain, in terms of proportions, what their presence means for
the national illicit drug market. See generally Wirtz, 392 U.S., at 196, n. 27,
20 L. Ed. 2d 1020, 88 S. Ct. 2017 (Congress cannot use "a relatively trivial
impact on commerce as an excuse for broad general regulation of state or private
activities"); cf. General Accounting Office, Marijuana: Early Experience with
Four States' Laws That Allow Use for Medical Purposes 21-23 (Rep. No. 03-189, Nov.
2002),
http://www.gao.gov/new.items/d03189.pdf (as visited June 3, 2005 and available
in Clerk of Court's case file) (in four California counties before the identification
card system was enacted, voluntarily registered medical marijuana patients were
less than 0.5 percent of the population; in Alaska, Hawaii, and Oregon, statewide
medical marijuana registrants represented less than 0.05 percent of the States'
populations). It also provides anecdotal evidence about the CSA's enforcement. See
Reply Brief for Petitioners 17-18. The Court also offers some arguments about the
effect of the Compassionate Use Act on the national market. It says that the California
statute might be vulnerable to exploitation by unscrupulous physicians, that Compassionate
Use Act patients may overproduce, and that the history of the narcotics trade shows
the difficulty of cordoning off any drug use from the rest of the market. These
arguments are plausible; if borne out in fact they could justify prosecuting Compassionate
Use Act patients under the federal CSA. But, without substantiation, [*57]
they add little to the CSA's conclusory statements about diversion, essentiality,
and market effect. Piling assertion upon assertion does not, in my view, satisfy
the substantiality test of Lopez and Morrison.
III
We would do well to recall how James Madison, the father of the Constitution, described
our system of joint sovereignty to the people of New York: "The powers delegated
by the proposed constitution to the federal government are few and defined. Those
which are to remain in the State governments are numerous and indefinite. . . .
The powers reserved to the several States will extend to all the objects which,
in the ordinary course of affairs, concern the lives, liberties, and properties
of the people, and the internal order, improvement, and prosperity of the State."
The Federalist No. 45, pp 292-293 (C. Rossiter ed. 1961).
Relying on Congress' abstract assertions, the Court has endorsed making it a federal
crime to grow small amounts of marijuana in one's own home for one's own medicinal
use. This overreaching stifles an express choice by some States, concerned for the
lives and liberties of their people, to regulate medical marijuana differently.
If I were a California citizen, I would not have voted for the medical marijuana
ballot initiative; if I were a California legislator I would not have supported
the Compassionate Use Act. But whatever the wisdom of California's experiment with
medical marijuana, the federalism principles that have driven our Commerce Clause
cases require that room for experiment be protected in this case. For these reasons
I dissent.
Justice Thomas, dissenting.
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 [*58]
this under the Commerce Clause, then it can regulate virtually anything--and the
Federal Government is no longer one of limited and enumerated powers.
I
Respondents' local cultivation and consumption of marijuana is not "Commerce
. . . among the several States." U.S. Const., Art. I, § 8, cl. 3. By holding
that Congress may regulate activity that is neither interstate nor commerce under
the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's
limits on federal power. The majority supports this conclusion by invoking, without
explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however,
is not "necessary and proper for carrying into Execution" Congress' restrictions
on the interstate drug trade. Art. I, § 8, cl. 18. Thus, neither the Commerce Clause
nor the Necessary and Proper Clause grants Congress the power to regulate respondents'
conduct.
A
As I explained at length in United States v. Lopez, 514 U.S. 549, 131 L. Ed. 2d
626, 115 S. Ct. 1624 (1995), the Commerce Clause empowers Congress to regulate the
buying and selling of goods and services trafficked across state lines. Id., at
586-589, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (concurring opinion). The Clause's text,
structure, and history all indicate that, at the time of the founding, the term
"'commerce' consisted of selling, buying, and bartering, as well as transporting
for these purposes." Id., at 585, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (Thomas,
J., concurring). Commerce, or trade, stood in contrast to productive activities
like manufacturing and agriculture. Id., at 586-587, 131 L. Ed. 2d 626, 115 S. Ct.
1624 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison's notes
from the Constitutional Convention, The Federalist Papers, and the ratification
debates, the term "commerce" is consistently used to mean trade or exchange--not
all economic or gainful activity that has some attenuated connection to trade or
exchange. Ibid. (Thomas, [*59] J., concurring); Barnett, The Original
Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112-125 (2001). The term
"commerce" commonly meant trade or exchange (and shipping for these purposes)
not simply to those involved in the drafting and ratification processes, but also
to the general public. Barnett, New Evidence of the Original Meaning of the Commerce
Clause, 55 Ark. L. Rev. 847, 857-862 (2003).
Even the majority does not argue that respondents' conduct is itself "Commerce
among the several States." Art. I, § 8, cl. 3. Ante, at ____, 162 L. Ed. 2d,
at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They
cultivate their cannabis entirely in the State of California--it never crosses state
lines, much less as part of a commercial transaction. Certainly no evidence from
the founding suggests that "commerce" included the mere possession of
a good or some purely personal activity that did not involve trade or exchange for
value. In the early days of the Republic, it would have been unthinkable that Congress
could prohibit the local cultivation, possession, and consumption of marijuana.
On this traditional understanding of "commerce," the Controlled Substances
Act (CSA), 21 U.S.C. § 801 et seq., regulates a great deal of marijuana trafficking
that is interstate and commercial in character. The CSA does not, however, criminalize
only the interstate buying and selling of marijuana. Instead, it bans the entire
market--intrastate or interstate, noncommercial or commercial--for marijuana. Respondents
are correct that the CSA exceeds Congress' commerce power as applied to their conduct,
which is purely intrastate and noncommercial.
B
More difficult, however, is whether the CSA is a valid exercise of Congress' power
to enact laws that are "necessary and proper for carrying into Execution"
its power to regulate interstate commerce. Art. I, § 8, cl. 18. The Necessary and
Proper Clause [*60] is not a warrant to Congress to enact any law
that bears some conceivable connection to the exercise of an enumerated power. [Footnote
1] Nor is it, however, a command to Congress to enact only laws that are absolutely
indispensable to the exercise of an enumerated power. [Footnote 2]
In McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579 (1819), this Court,
speaking through Chief Justice Marshall, set forth a test for determining when an
Act of Congress is permissible under the Necessary and Proper Clause:
"Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that end, which
are not prohibited, but consist with the letter and spirit of the constitution,
are constitutional." Id., at 421, 4 L. Ed. 579.
To act under the Necessary and Proper Clause, then, Congress must select a means
that is "appropriate" and "plainly adapted" to executing an
enumerated power; the means cannot be otherwise "prohibited" by the Constitution;
and the means cannot be inconsistent with "the letter and spirit of the [C]onstitution."
Ibid.; D. Currie, The Constitution in the Supreme Court: The First Hundred Years
1789-1888, pp 163-164 (1985). The CSA, as applied to respondents' conduct, is not
a valid exercise of Congress' power under the Necessary and Proper Clause.
1
Congress has exercised its power over interstate commerce to criminalize trafficking
in marijuana across state [*61] lines. The Government contends
that banning Monson and Raich's intrastate drug activity is "necessary and
proper for carrying into Execution" its regulation of interstate drug trafficking.
Art. I, § 8, cl. 18. See 21 U.S.C. § 801(6). However, in order to be "necessary,"
the intrastate ban must be more than "a reasonable means [of] effectuat[ing]
the regulation of interstate commerce." Brief for Petitioners 14; see ante,
at ____, 162 L. Ed. 2d, at 22 (majority opinion) (employing rational-basis review).
It must be "plainly adapted" to regulating interstate marijuana trafficking--in
other words, there must be an "obvious, simple, and direct relation" between
the intrastate ban and the regulation of interstate commerce. Sabri v. United States,
541 U.S. 600, 613, 158 L. Ed. 2d 891, 124 S. Ct. 1941 (2004) (Thomas, J., concurring
in judgment); see also United States v. Dewitt, 76 U.S. 41, 9 Wall. 41, 44, 19 L.
Ed. 593 (1870) (finding ban on intrastate sale of lighting oils not "appropriate
and plainly adapted means for carrying into execution" Congress' taxing power).
On its face, a ban on the intrastate cultivation, possession and distribution of
marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated
local growers and users could swell both the supply and the demand sides of the
interstate marijuana market, making the market more difficult to regulate. Ante,
at ____ - ____, ____, 162 L. Ed. 2d, at 15-16, 22 (majority opinion). But respondents
do not challenge the CSA on its face. Instead, they challenge it as applied to their
conduct. The question is thus whether the intrastate ban is "necessary and
proper" as applied to medical marijuana users like respondents. [Footnote 3]
Respondents are not regulable simply because they belong to a large class (local
growers and users of marijuana) that [*62] Congress might need
to reach, if they also belong to a distinct and separable subclass (local growers
and users of state-authorized, medical marijuana) that does not undermine the CSA's
interstate ban. Ante, at ____ - ____, 162 L. Ed. 2d, at 38-39 (O'Connor, J., dissenting).
The Court of Appeals found that respondents' "limited use is distinct from
the broader illicit drug market," because "th[eir] medicinal marijuana
. . . is not intended for, nor does it enter, the stream of commerce." Raich
v. Ashcroft, 352 F.3d 1222, 1228 (CA9 2003). If that is generally true of individuals
who grow and use marijuana for medical purposes under state law, then even assuming
Congress has "obvious" and "plain" reasons why regulating intrastate
cultivation and possession is necessary to regulating the interstate drug trade,
none of those reasons applies to medical marijuana patients like Monson and Raich.
California's Compassionate Use Act sets respondents' conduct apart from other intrastate
producers and users of marijuana. The Act channels marijuana use to "seriously
ill Californians," Cal. Health & Safety Code Ann. § 11362.5(b)(1)(A) (West
Supp. 2005), and prohibits "the diversion of marijuana for nonmedical purposes,"
§ 11362.5(b)(2). [Footnote 4] California strictly controls the cultivation and possession
of marijuana for medical purposes. To be eligible for its program, California requires
that a patient have an illness that cannabis can relieve, such as cancer, AIDS,
or arthritis, § 11362.5(b)(1)(A), and that he obtain a physician's recommendation
or approval, § 11362.5(d). Qualified patients must provide personal and medical
information to obtain medical identification cards, and there is a statewide registry
of cardholders. §§ 11362.715-.76. Moreover, the Medical Board of California has
issued guidelines for physicians' cannabis recommendations, and it sanctions physicians
who do not comply with the guidelines. [*63] See, e.g., People
v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal.Rptr. 3d 840, 843 (2004).
This class of intrastate users is therefore distinguishable from others. We normally
presume that States enforce their own laws, Riley v. National Federation of Blind
of N. C., Inc., 487 U.S. 781, 795, 101 L. Ed. 2d 669, 108 S. Ct. 2667 (1988), and
there is no reason to depart from that presumption here: Nothing suggests that California's
controls are ineffective. The scant evidence that exists suggests that few people--the
vast majority of whom are aged 40 or older--register to use medical marijuana. General
Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow
Use for Medical Purposes 22-23 (Rep. No. 03-189, Nov. 2002), http://www.gao.gov/new.items/d01389.pdf
(all Internet materials as visited on June 3, 2005, and available in Clerk of Court's
case file). In part because of the low incidence of medical marijuana use, many
law enforcement officials report that the introduction of medical marijuana laws
has not affected their law enforcement efforts. Id., at 32.
These controls belie the Government's assertion that placing medical marijuana outside
the CSA's reach "would prevent effective enforcement of the interstate ban
on drug trafficking." Brief for Petitioners 33. Enforcement of the CSA can
continue as it did prior to the Compassionate Use Act. Only now, a qualified patient
could avoid arrest or prosecution by presenting his identification card to law enforcement
officers. In the event that a qualified patient is arrested for possession or his
cannabis is seized, he could seek to prove as an affirmative defense that, in conformity
with state law, he possessed or cultivated small quantities of marijuana intrastate
solely for personal medical use. People v. Mower, 28 Cal. 4th 457, 469-470, 122
Cal. Rptr. 2d 326, 49 P. 3d 1067, 1073-1075 (2002); People v. Trippet, 56 Cal. App.
4th 1532, 1549, 66 Cal. Rptr. 2d 559 (1997). Moreover, under the CSA, certain drugs
that present a high risk of abuse and addiction but that nevertheless have an accepted
medical use--drugs like morphine [*64] and amphetamines--are available
by prescription. 21 U.S.C. §§ 812(b)(2)(A)-(B); 21 CFR § 1308.12 (2004). No one
argues that permitting use of these drugs under medical supervision has undermined
the CSA's restrictions.
But even assuming that States' controls allow some seepage of medical marijuana
into the illicit drug market, there is a multibillion-dollar interstate market for
marijuana. Executive Office of the President, Office of Nat. Drug Control Policy,
Marijuana Fact Sheet 5 (Feb. 2004), http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/index.html.
It is difficult to see how this vast market could be affected by diverted medical
cannabis, let alone in a way that makes regulating intrastate medical marijuana
obviously essential to controlling the interstate drug market.
To be sure, Congress declared that state policy would disrupt federal law enforcement.
It believed the across-the-board ban essential to policing interstate drug trafficking.
21 U.S.C. § 801(6). But as Justice O'Connor points out, Congress presented no evidence
in support of its conclusions, which are not so much findings of fact as assertions
of power. Ante, at ____ - ____, 162 L. Ed. 2d, at 43 (dissenting opinion). Congress
cannot define the scope of its own power merely by declaring the necessity of its
enactments.
In sum, neither in enacting the CSA nor in defending its application to respondents
has the Government offered any obvious reason why banning medical marijuana use
is necessary to stem the tide of interstate drug trafficking. Congress' goal of
curtailing the interstate drug trade would not plainly be thwarted if it could not
apply the CSA to patients like Monson and Raich. That is, unless Congress' aim is
really to exercise police power of the sort reserved to the States in order to eliminate
even the intrastate possession and use of marijuana.
2
Even assuming the CSA's ban on locally cultivated and consumed marijuana is "necessary,"
that does not mean it is [*65] also "proper." The means
selected by Congress to regulate interstate commerce cannot be "prohibited"
by, or inconsistent with the "letter and spirit" of, the Constitution.
McCulloch, 4 Wheat., at 421, 4 L. Ed. 579.
In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial
activity under the Commerce Clause would confer on Congress a general "police
power" over the Nation. 514 U.S., at 584, 600, 131 L. Ed. 2d 626, 115 S. Ct.
1624 (concurring opinion). This is no less the case if Congress ties its power to
the Necessary and Proper Clause rather than the Commerce Clause. When agents from
the Drug Enforcement Administration raided Monson's home, they seized six cannabis
plants. If the Federal Government can regulate growing a half-dozen cannabis plants
for personal consumption (not because it is interstate commerce, but because it
is inextricably bound up with interstate commerce), then Congress' Article I powers--as
expanded by the Necessary and Proper Clause --have no meaningful limits. Whether
Congress aims at the possession of drugs, guns, or any number of other items, it
may continue to "appropria[te] state police powers under the guise of regulating
commerce." United States v. Morrison, 529 U.S. 598, 627, 146 L. Ed. 2d 658,
120 S. Ct. 1740 (2000) (Thomas, J., concurring).
Even if Congress may regulate purely intrastate activity when essential to exercising
some enumerated power, see Dewitt, 9 Wall., at 44, 19 L. Ed. 593; but see Barnett,
The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183,
186 (2003) (detailing statements by Founders that the Necessary and Proper Clause
was not intended to expand the scope of Congress' enumerated powers), Congress may
not use its incidental authority to subvert basic principles of federalism and dual
sovereignty. Printz v. United States, 521 U.S. 898, 923-924, 138 L. Ed. 2d 914,
117 S. Ct. 2365 (1997); Alden v. Maine, 527 U.S. 706, 732-733, 144 L. Ed. 2d 636,
119 S. Ct. 2240 (1999); Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 585, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985) (O'Connor, J., dissenting);
The Federalist No. 33, pp 204-205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter
The Federalist).
[*66] Here, Congress has encroached on States' traditional police
powers to define the criminal law and to protect the health, safety, and welfare
of their citizens. [Footnote 5] Brecht v. Abrahamson, 507 U.S. 619, 635, 123 L.
Ed. 2d 353, 113 S. Ct. 1710 (1993); Hillsborough County v. Automated Medical Laboratories,
Inc., 471 U.S. 707, 719, 85 L. Ed. 2d 714, 105 S. Ct. 2371 (1985). Further, the
Government's rationale--that it may regulate the production or possession of any
commodity for which there is an interstate market--threatens to remove the remaining
vestiges of States' traditional police powers. See Brief for Petitioners 21-22;
cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L. J. 825, 826,
841 (2000) (describing both the relative recency of a large percentage of federal
crimes and the lack of a relationship between some of these crimes and interstate
commerce). This would convert the Necessary and Proper Clause into precisely what
Chief Justice Marshall did not envision, a "pretext . . . for the accomplishment
of objects not intrusted to the government." McCulloch, supra, at 423, 4 L.
Ed. 579.
[*67] II
The majority advances three reasons why the CSA is a legitimate exercise of Congress'
authority under the Commerce Clause: First, respondents' conduct, taken in the aggregate,
may substantially affect interstate commerce, ante, at ____, 162 L. Ed. 2d, at 22;
second, regulation of respondents' conduct is essential to regulating the interstate
marijuana market, ante, at ____ - ____, 162 L. Ed. 2d, at 23; and, third, regulation
of respondents' conduct is incidental to regulating the interstate marijuana market,
ante, at ____ - ____, 162 L. Ed. 2d, at 21-23. Justice O'Connor explains why the
majority's reasons cannot be reconciled with our recent Commerce Clause jurisprudence.
The majority's justifications, however, suffer from even more fundamental flaws.
A
The majority holds that Congress may regulate intrastate cultivation and possession
of medical marijuana under the Commerce Clause, because such conduct arguably has
a substantial effect on interstate commerce. The majority's decision is further
proof that the "substantial effects" test is a "rootless and malleable
standard" at odds with the constitutional design. Morrison, supra, at 627,
146 L. Ed. 2d 658, 120 S. Ct. 1740 (Thomas, J., concurring).
The majority's treatment of the substantial effects test is rootless, because it
is not tethered to either the Commerce Clause or the Necessary and Proper Clause.
Under the Commerce Clause, Congress may regulate interstate commerce, not activities
that substantially affect interstate commerce--any more than Congress may regulate
activities that do not fall within, but that affect, the subjects of its other Article
I powers. Lopez, supra, at 589, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (Thomas, J.,
concurring). Whatever additional latitude the Necessary and Proper Clause affords,
supra, at ____ - ____, 162 L. Ed. 2d, at 50-51, the question is whether Congress'
legislation is essential to the regulation of interstate commerce itself--not whether
the legislation extends only to economic [*68] activities that
substantially affect interstate commerce. Supra, at ____, 162 L. Ed. 2d, at 47;
ante, at ____, 162 L. Ed. 2d, at 32 (Scalia, J., concurring in judgment).
The majority's treatment of the substantial effects test is malleable, because the
majority expands the relevant conduct. By defining the class at a high level of
generality (as the intrastate manufacture and possession of marijuana), the majority
overlooks that individuals authorized by state law to manufacture and possess medical
marijuana exert no demonstrable effect on the interstate drug market. Supra, at
____ - ____, 162 L. Ed. 2d, at 49. The majority ignores that whether a particular
activity substantially affects interstate commerce--and thus comes within Congress'
reach on the majority's approach--can turn on a number of objective factors, like
state action or features of the regulated activity itself. Ante, at ____ - ____,
162 L. Ed. 2d, at 38-39 (O'Connor, J., dissenting). For instance, here, if California
and other States are effectively regulating medical marijuana users, then these
users have little effect on the interstate drug trade. [Footnote 6]
The substantial effects test is easily manipulated for another reason. This Court
has never held that Congress can [*69] regulate noneconomic activity
that substantially affects interstate commerce. Morrison, 529 U.S., at 613, 146
L. Ed. 2d 658, 120 S. Ct. 1740 ("[T]hus far in our Nation's history our cases
have upheld Commerce Clause regulation of intrastate activity only where that activity
is economic in nature" (emphasis added)); Lopez, supra, at 560, 131 L. Ed.
2d 626, 115 S. Ct. 1624. To evade even that modest restriction on federal power,
the majority defines economic activity in the broadest possible terms as "'the
production, distribution, and consumption of commodities.'" [Footnote 7] Ante,
at ____, 162 L. Ed. 2d, at 24 (quoting Webster's Third New International Dictionary
720 (1966) (hereinafter Webster's 3d). This carves out a vast swath of activities
that are subject to federal regulation. See ante, at ____ - ____, 162 L. Ed. 2d,
at 39-40 (O'Connor, J., dissenting). 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, " while those of the States are "numerous and indefinite."
The Federalist No. 45, at 313 (J. Madison).
Moreover, even a Court interested more in the modern than the original understanding
of the Constitution ought to resolve cases based on the meaning of words that are
actually in the document. Congress is authorized to regulate "Commerce,"
and respondents' conduct does not qualify under any definition of that term. [Footnote
8] The majority's opinion [*70] only illustrates the steady drift
away from the text of the Commerce Clause. There is an inexorable expansion from
"'commerce, '" ante, at ____, 162 L. Ed. 2d, at 11, to "commercial"
and "economic" activity, ante, at ____, 162 L. Ed. 2d, at 22, and finally
to all "production, distribution, and consumption" of goods or services
for which there is an "established . . . interstate market," ante, at
____, 162 L. Ed. 2d, at 24. Federal power expands, but never contracts, with each
new locution. The majority is not interpreting the Commerce Clause, but rewriting
it.
The majority's rewriting of the Commerce Clause seems to be rooted in the belief
that, unless the Commerce Clause covers the entire web of human activity, Congress
will be left powerless to regulate the national economy effectively. Ante, at ____
- ____, 162 L. Ed. 2d, at 19-20; Lopez, 514 U.S., at 573-574, 131 L. Ed. 2d 626,
115 S. Ct. 1624 (Kennedy, J., concurring). The interconnectedness of economic activity
is not a modern phenomenon unfamiliar to the Framers. Id., at 590-593, 131 L. Ed.
2d 626, 115 S. Ct. 1624 (Thomas, J., concurring); Letter from J. Madison to S. Roane
(Sept. 2, 1819), in 3 The Founders' Constitution 259-260 (P. Kurland & R. Lerner
eds. 1987). Moreover, 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. This Court has carefully avoided stripping Congress
of its ability to regulate interstate commerce, but it has casually allowed the
Federal Government to strip States of their ability to regulate intrastate commerce--not
to mention a host of local activities, like mere drug possession, that are not commercial.
One searches the Court's opinion in vain for any hint of what aspect of American
life is reserved to the States. Yet this Court knows that "'[t]he Constitution
created a Federal Government of limited powers.'" New York v. United States,
505 U.S. 144, 155, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992) (quoting Gregory v.
Ashcroft, [*71] 501 U.S. 452, 457, 115 L. Ed. 2d 410, 111 S. Ct.
2395 (1991)). That is why today's decision will add no measure of stability to our
Commerce Clause jurisprudence: This Court is willing neither to enforce limits on
federal power, nor to declare the Tenth Amendment a dead letter. If stability is
possible, it is only by discarding the stand-alone substantial effects test and
revisiting our definition of "Commerce among the several States." Congress
may regulate interstate commerce--not things that affect it, even when summed together,
unless truly "necessary and proper" to regulating interstate commerce.
B
The majority also inconsistently contends that regulating respondents' conduct is
both incidental and essential to a comprehensive legislative scheme. Ante, at ____
- ____, ____ - ____, 162 L. Ed. 2d, at 21-22, 23. I have already explained why the
CSA's ban on local activity is not essential. Supra, at ____ - ____, 162 L. Ed.
2d, at 49. However, the majority further claims that, because the CSA covers a great
deal of interstate commerce, it "is of no moment" if it also "ensnares
some purely intrastate activity." Ante, at ____, 162 L. Ed. 2d, at 22. So long
as Congress casts its net broadly over an interstate market, according to the majority,
it is free to regulate interstate and intrastate activity alike. This cannot be
justified under either the Commerce Clause or the Necessary and Proper Clause. If
the activity is purely intrastate, then it may not be regulated under the Commerce
Clause. And if the regulation of the intrastate activity is purely incidental, then
it may not be regulated under the Necessary and Proper Clause.
Nevertheless, the majority terms this the "pivotal" distinction between
the present case and Lopez and Morrison. Ante, at ____, 162 L. Ed. 2d, at 22. In
Lopez and Morrison, the parties asserted facial challenges, claiming "that
a particular statute or provision fell outside Congress' commerce power in its entirety."
Ante, at 20, 162 L. Ed. 2d, at 22. Here, by contrast, respondents claim only that
the CSA falls outside Congress' commerce power as applied [*72]
to their individual conduct. According to the majority, while courts may set aside
whole statutes or provisions, they may not "excise individual applications
of a concededly valid statutory scheme." Ante, at 20-21, 162 L. Ed. 2d, at
22; see also Perez v. United States, 402 U.S. 146, 154, 28 L. Ed. 2d 686, 91 S.
Ct. 1357 (1971); Maryland v. Wirtz, 392 U.S. 183, 192-193, 20 L. Ed. 2d 1020, 88
S. Ct. 2017 (1968).
It is true that if respondents' conduct is part of a "class of activities .
. . and that class is within the reach of federal power," Perez, supra, at
154, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (emphasis deleted), then respondents may not
point to the de minimis effect of their own personal conduct on the interstate drug
market, Wirtz, supra, at 196, n. 27, 20 L. Ed. 2d 1020, 88 S. Ct. 2017. Ante, at
6, 162 L. Ed. 2d, at 38 (O'Connor, J., dissenting). But that begs the question at
issue: whether respondents' "class of activities" is "within the
reach of federal power," which depends in turn on whether the class is defined
at a low or a high level of generality. Supra, at 5, 162 L. Ed. 2d, at 47. If medical
marijuana patients like Monson and Raich largely stand outside the interstate drug
market, then courts must excise them from the CSA's coverage. Congress expressly
provided that if "a provision [of the CSA] is held invalid in one of more of
its applications, the provision shall remain in effect in all its valid applications
that are severable." 21 U.S.C. § 901 (emphasis added); see also United States
v. Booker, 543 U.S. ___, ___, n.9, 543 U.S. 220, 160 L. Ed. 2d 621, 698, 125 S.
Ct. 738 (2005) (Thomas, J., dissenting in part).
Even in the absence of an express severability provision, it is implausible that
this Court could set aside entire portions of the United States Code as outside
Congress' power in Lopez and Morrison, but it cannot engage in the more restrained
practice of invalidating particular applications of the CSA that are beyond Congress'
power. This Court has regularly entertained as-applied challenges under constitutional
provisions, see United States v. Raines, 362 U.S. 17, 20-21, 4 L. Ed. 2d 524, 80
S. Ct. 519 (1960), including the Commerce Clause, see Katzenbach v. McClung, 379
U.S. 294, 295, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964); Heart of Atlanta [*73]
Motel, Inc. v. United States, 379 U.S. 241, 249, 13 L. Ed. 2d 258, 85 S. Ct. 348
(1964); Wickard v. Filburn, 317 U.S. 111, 113-114, 87 L. Ed. 122, 63 S. Ct. 82 (1942).
There is no reason why, when Congress exceeds the scope of its commerce power, courts
may not invalidate Congress' overreaching on a case-by-case basis. The CSA undoubtedly
regulates a great deal of interstate commerce, but that is no license to regulate
conduct that is neither interstate nor commercial, however minor or incidental.
If the majority is correct that Lopez and Morrison are distinct because they were
facial challenges to "particular statute[s] or provision[s]," ante, at
20, 162 L. Ed. 2d, at 22, then congressional power turns on the manner in which
Congress packages legislation. Under the majority's reasoning, Congress could not
enact--either as a single-subject statute or as a separate provision in the CSA--a
prohibition on the intrastate possession or cultivation of marijuana. Nor could
it enact an intrastate ban simply to supplement existing drug regulations. However,
that same prohibition is perfectly constitutional when integrated into a piece of
legislation that reaches other regulable conduct. Lopez, 514 U.S., at 600-601, 131
L. Ed. 2d 626, 115 S. Ct. 1624 (Thomas, J., concurring).
Finally, the majority's view--that because some of the CSA's applications are constitutional,
they must all be constitutional--undermines its reliance on the substantial effects
test. The intrastate conduct swept within a general regulatory scheme may or may
not have a substantial effect on the relevant interstate market. "[O]ne always
can draw the circle broadly enough to cover an activity that, when taken in isolation,
would not have substantial effects on commerce." Id., at 600, 131 L. Ed. 2d
626, 115 S. Ct. 1624 (Thomas, J., concurring). The breadth of legislation that Congress
enacts says nothing about whether the intrastate activity substantially affects
interstate commerce, let alone whether it is necessary to the scheme. Because medical
marijuana users in California and elsewhere are not placing substantial amounts
of cannabis [*74] into the stream of interstate commerce, Congress
may not regulate them under the substantial effects test, no matter how broadly
it drafts the CSA.
* * *
The majority prevents States like California from devising drug policies that they
have concluded provide much-needed respite to the seriously ill. It does so without
any serious inquiry into the necessity for federal regulation or the propriety of
"displac[ing] state regulation in areas of traditional state concern,"
id., at 583, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (Kennedy, J., concurring). The majority's
rush to embrace federal power "is especially unfortunate given the importance
of showing respect for the sovereign States that comprise our Federal Union."
United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 502, 149 L.
Ed. 2d 722, 121 S. Ct. 1711 (2001) (Stevens, J., concurring in judgment). 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.
I would affirm the judgment of the Court of Appeals. I respectfully dissent.