Saturday, January 18, 2014

Why Gonzales v. Raich is wrongly decided (even if you tolerate Wickard)

Precedent Refresher #1: Wickard v. Filburn

Those familiar with constitutional law, and my opinions on it, are likely familiar with the Supreme Court case Wickard v. Filburn. As I’ve lamented previously, Wickard was a case from the 1940’s in which a packed and pressured New Deal era court pretended that growing wheat for personal consumption in one’s own backyard was constitutionally subject to federal regulation so long as it carried a “substantial effect” on interstate commerce (in the eyes of legislators…). Later memos from the justices’ deliberations reveal that the court decided their ruling on the case – letting FDR do whatever he wanted – months before it concocted a legal justification as to why. The implications on the direction of American governance were immense. Practically anything can be argued to have some remote impact on commerce, so for the next fifty years, Wickard gave the federal government essentially unlimited dominion over anything they wanted to regulate. The ruling is laughably wrong, terribly dangerous, and an ominous example of enfeebled judicial indifference to obvious constitutional duty in the face of political pressure. It should be overturned as soon as possible.

However, unless you’re a libertarian, an originalist or a constitutional conservative of some sort, you probably don’t want to hear that. An extremely expansive interpretation of the commerce clause is the only conceivable constitutional justification for many popular federal programs, and reversing Wickard would leave those programs with little defense against constitutional challenges (see footnote 1). For the sake of this article, let’s say you view Wickard as sacrosanct precedent that cannot be questioned.

The point of this post is to demonstrate why the Controlled Substances Act’s prohibition of private marijuana growth is still unconstitutional, even under the Wickard precedent, and therefore that the 2005 Supreme Court case of Gonzales v. Raich (which ruled the federal destruction of privately grown/consumed medicinal marijuana plants under the CSA constitutional, even in states which had legalized such growth) was wrongly decided.

Precedent Refresher 2: US v. Lopez

To understand why, you first need to be familiar with a third case: U.S. v. Lopez from 1995. Lopez was the first post-Wickard decision to strike down a federal statute as being beyond the scope of the commerce clause. The law in question was the Gun Free School Zones Act, which, true to its name, made it illegal to possess a gun within a certain distance of a school.

I suppose it could be argued (and I suppose this only because, when Lopez was presented to the court, it was argued) that the activity of bringing a gun within a certain distance of a school contributed to school violence in the aggregate, and thereby disrupted classroom activities. I suppose it could be further argued (as it was) that the resulting disruption and fear decreased the quality of education, which made students and graduates stupider, which made workers less qualified and THEREFORE could conceivably have had some undesirable effect on the quality or number of items travelling through interstate commerce (see footnote 2). And I suppose, if somebody with excellent composure practiced in front of a mirror for hours on end, that this argument could even be delivered with a straight face.

Mercifully, the Lopez court rejected this argument. The Court tiptoed around a direct confrontation with Wickard precedent by reaffirming the same doctrinal standard Wickard established: the regulated activity must have a “substantial economic effect” on interstate commerce. However, by claiming the right to determine how substantial that effect needed to be in order to satisfy commerce clause requirements – a privilege Wickard had left up to Congressional discretion – the Lopez court at long last sketched some outer limits on Congress’s previously unlimited commerce clause authority. And in the specific case of the Gun Free School Zones Act, the majority insisted that “[e]ven Wickard…involved economic activity in a way that the possession of a gun in a school zone does not.” They explained why:
[Section 922(q) of the Gun Free School Zone Act] 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.

Here we see how the Court distinguished between the Agricultural Adjustment Act scrutinized in Wickard and the Gun Free School Zones Act scrutinized in Lopez. In Wickard, it was doubtful whether the activity Congress was directly regulating (namely, the growth of wheat) actually counted as interstate commerce itself, but there was little doubt that the intended consequence of the regulation (namely, the maintenance of wheat prices above a certain level) was commercial in nature. With that in mind, the Wickard court decided that so long as the desired objective of the law was that commerce be regulated, the constitution would permit virtually any means toward that end. The court distinguished between the nature of the activity being directly regulated, and the and intended “effects” of such regulation, asserting that only the latter needed to be commercial in nature for the regulation to be justifiable under the commerce clause.

But in the case of Lopez, the court ruled that not only was the regulated action (namely, possession of guns within a certain area) not commercial, but the intended effect of that action (namely, decreasing violence in schools), however desirable it may have been, also had no or minimal relation to commerce. Had the intended effect of the law been primarily commercial (say, to maintain the price of firearms above a certain level), and Congress could demonstrate some plausible connection between the law and that objective, perhaps the court would have reconsidered. But they couldn’t, because the commercial exchange of firearms themselves was clearly not what Congress had meant to regulate, and so the majority struck down the law.

Application to Gonzalez v. Raich

Let’s apply this reasoning to the Controlled Substances Act of 1971. It seems clear to me that the CSA is much more of a criminal statute than a commercial regulation. Its primary objective is to eliminate or minimize the use of drugs, which are viewed by many as a moral and social ill. This goal, whatever its incidental economic effects, was never truly commercial in nature. At its root, it was not the price of drugs, nor the minimal quality standards of drugs, nor the shipment of drugs across state lines that the government sought to regulate. Controlling these things was only an indirect means by which to accomplish Congress’ real goal: preventing the use and presence and very existence of drugs in the first place. Decreased use of drugs is not an intended effect on the commercial exchange of goods or services, as “inflating the price of wheat” might have been. It is instead a morally arbitrary assertion about the ethical desirability of certain behaviors for society at large, much in the same way criminalizing prostitution or gambling (traditionally handled at the state level) might be considered. It is therefore a decidedly non-commercial overreach into state affairs.

Of course, like prostitution and gambling, drug use might have aggregate impacts on commerce by coincidence; as a humorous example, let us imagine marijuana usage doubles the demand for Cheetos and White Castle. But it's clear regulating that commerce was not the intent of Congress, and Lopez tells us the intent matters (see footnote 3). Congress did not view the CSA as a means by which to lower demand for snack foods. Imprisoning marijuana users is not a vehicle by which to deliver desired changes to the market for anything – it is the goal itself, and that goal is fundamentally a police power.

By the logic used in Raich, one could imagine Congress using the commerce power to justify the federal prohibition of prostitution. Yes, prostitution may have aggregate impacts on commerce; let’s imagine that it decreases the demand for porn, and increases the demand for condoms and lube. But could Congress really pretend that it views the prohibition of prostitution merely as a means to contain the price of condoms for the non-prostitute using public? Or would it be blatantly obvious that Congress was abusing its commerce-clause power for essentially non-commercial moral imperialism, just so it could overrule local and state laws on the matter (perhaps in Nevada) and arrest people engaged in activities it deemed immoral?

Rebutting the majority opinions of Gonzales v. Raich

Unfortunately, the Raich court narrowly disagreed with me. The majority opined:
“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. 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…”
But not everything which is economic is necessarily commercial (consumption, for example, falls within the former but not the latter), and regulating the “lucrative interstate market” for drugs is not what the CSA primarily means to do. Prohibiting the growth and consumption of X is not, in this instance, a means of regulating the exchange of X. It is the end itself. It would be more accurate to describe the CSA in reverse: it regulates the exchange of X merely as a means of prohibiting X’s consumption.

Now, so long as the CSA restricts itself to regulating the actual exchange of drugs, that’s okay: a direct regulation of commerce itself, which even pre-Wickard courts might tolerate. But in the case of Gonzales v. Raich, it was attempting to regulate the private, home growth of medicinal marijuana for personal use by very sick patients who never planned to exchange it with anyone. This was a non-commercial, intrastate activity. It’s true that Wickard tolerated a federal restriction on an non-commercial, intrastate activity – but only to bring about a certain commercial result on a national market. But in Raich, the regulation was enforced on an non-commercial, intrastate activity for the sake of restricting that activity itself, with the impacts on the national market being wholly coincidental. The CSA was not enforced on Mrs. Raich with an eye towards bringing about effects on commerce in the aggregate, but rather with an eye towards restricting her private behavior. The Wickard equivalent is telling Roscoe Filburn that he can’t grow wheat on his own land, not because Congress cares about the price of wheat for the whole nation and fears the wheat he grows might impact that price, but because it just doesn’t want him to eat wheat! “It has too much gluten and it’s bad for you, so stop growing it!”

Markets are a forum for exchange (aka, commerce), and Congress never cared about exchange. Congress doesn’t care about the commercial impact of drugs, or the price of drugs, or their quality, or their shipment methods. They care only about restricting their proliferation and use, and that is a non-commercial, decidedly moralistic objective that the framers clearly felt should be handled at the state level.

The next argument of the majority was meant to back conservatives like Thomas into a corner, and in so doing it was accidentally correct. They opine:
“If, as the principle dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the “outer limits’ of Congress’ Commerce Clause authority,”…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.”

The realization that much of the Supreme Court is perfectly happy with ever expanding federal power is softened by the few remaining holdouts for originalism or something near it. That’s why it stings me to read Antonin Scalia’s concurring opinion on Raich. He writes:
“In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this…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.”

Again, I find myself asking if that is actually their end? Is their end to eradicate pot from interstate commerce, or just to eliminate its use whether or not it's ever bought or sold? Is it really the market they seek to extinguish? If nobody used drugs, they merely bought and sold them like baseball cards or fossils, as a neat collector’s item to hold on to and look at, would Congress care? Or is the only purpose of extinguishing the market for drugs to extinguish the use of drugs, due to moral or public health issues that have traditionally been the concern of the state? Isn’t the market impact merely a convenient excuse to encroach upon the state’s traditional role in deciding those matters? And if it is, isn’t that unsettling to you, Scalia? Isn’t that problematic to the notion that the commerce clause has limits, and that it’s not supposed to be a catch all for Congress to do whatever it wants, whether or not what it wants is geared towards commercial matters, and whether or not some states might prefer to handle those non-commercial matters differently? When Elena Kagan says she doesn’t give a shit about that, I expect it, but when Scalia says it I feel betrayed. I fear he allowed his social conservatism to silence his otherwise laudable sensitivity to federalist concerns, which are very real in this case.

Thankfully, the dissenters saw some reason. O’Connor observed that:
“The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens….By permitting Congress to overrule the state on such matters, “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 and United States v. Morrison. Accordingly I dissent.”

Likewise, Clarence Thomas opined:
“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….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.”

Both dissenting justices pointed out the distinction between fundamentally commercial (and thus federal), and fundamentally criminal (and thus state level) realms. Of course, there is overlap between these two realms; I suppose any criminal act, in the aggregate, could be said to levy a “substantial effect” on interstate commerce. But if our government is to have any pretense of legitimacy, it cannot continue convincing itself that the few and enumerated powers the people consented to under the constitution encompass anything legislators so desire. The best way to undo this dangerous and nonsensical trend is to unravel the decades of bad precedent that render our actual government unrecognizably different from the very document it’s allegedly based on. Ideally, that would mean repealing Wickard v. Filburn altogether. In the meantime, the next best way to distinguish between the commercial and the criminal, and to place any meaningful limit on the commerce clause, is to embrace the test I’ve outlined above: examine whether the legislation was truly and primarily intended as a commercial regulation.


1.     Of course, to people who actually care about the principles of constitutional law, this is looking at things exactly backwards. The entire premise of limited government requires that we interpret the constitution’s boundaries first, and then apply them to legislative proposals on a case by case basis, rather than deciding which legislation we want and then retroactively adopting whichever interpretation accommodates them.
2.     If the fact that this argument was seriously presented to the highest court in the land by an educated person – and furthermore, thanks to 50 years of precedent, WAS EXPECTED TO WIN – does not reveal to you the fallacy of Wickard v. Filburn and the loosey-goosey theory of constitutional interpretation it represents, then I’m convinced there is no hope for you as an even partially objective legal scholar. I encourage such people to stop reading and pursue another hobby – perhaps knitting, or something else in which the consequences of failing to grasp the essential principles of said endeavor does not endanger the safety and liberty of everyone around you.

3.     So too, for that matter, does a more recent case in an entirely different context: US v. Windsor. The Defense of Marriage Act was not an explicit discrimination against homosexuals, in the sense that it treated them any differently from anyone else: indeed, marriage rights were technically the same for heterosexual individuals as they were for homosexuals. What made DOMA unjust, Kennedy’s majority so eloquently explained, was the malicious and discriminatory intent of those who passed the law: that gays would not marry, or would have great trouble and emotional distress marrying. It was the principle intention of the law, rather than the action taken by it, which had to be assessed on constitutional grounds of equal protection. But if the Court can investigate Congress’s intent to determine if a law was meant to be discriminatory, why can’t it investigate Congress’ intent to determine if a regulation was truly designed as a commercial regulation?