Gonzales v. Raich(previously Ashcroft v. Raich), 545 U.S. 1 (2005), was adecision by the United States Supreme Court ruling that under theCommerce Clause of the US Constitution, Congress may criminalize theproduction and use of homegrown cannabis even if state law allows itsuse for medicinal purposes.
Background
California voters passed Proposition215 in 1996, legalizing the use of medical marijuana. The Federalgovernment of the United States has limited the use of marijuanasince the Marijuana Tax Act of 1937 was passed.
Defendant Angel Raich used homegrownmedical marijuana, which was legal under California law but illegalunder federal law. On August 15, 2002, Butte County Sheriff'sDepartment officers and agents from the federal Drug EnforcementAdministration destroyed all six of California resident DianeMonson's marijuana plants, facing light resistance. The marijuanaplants were illegal Schedule I drugs under the federal ControlledSubstances Act (CSA), which is Title II of the Comprehensive DrugAbuse Prevention and Control Act of 1970. Monson and Raich sued,claiming that enforcing Federal law against them would violate theCommerce Clause, the Due Process Clause of the Fifth Amendment, theNinth Amendment, the Tenth Amendment, and the doctrine of medicalnecessity.
Raich's physician stated that withoutmarijuana, Raich is threatened by excruciating pain. California wasone of 14 states at the time (36 as of 2021) that allowed medicinaluse of marijuana. California's Compassionate Use Act allows limiteduse of marijuana for medicinal purposes.
Raich and Monson's case
Raich of Oakland, California, Monson ofOroville, California, and two anonymous caregivers sued thegovernment for injunctive and declaratory relief on October 9, 2002,to stop the government from interfering with their right to produceand use medical marijuana claiming that the CSA was notconstitutional, as applied to their conduct. Raich and Monson wererepresented by Randy Barnett.
Raich claimed she used marijuana tokeep herself alive. She and her doctor claimed to have tried dozensof prescription medicines for her numerous medical conditions andthat she was allergic to most of them. Her doctor declared under oaththat Raich's life was at stake if she could not continue to usemarijuana. Monson suffered from chronic pain from a car accident adecade before the case. She used marijuana to relieve the pain andmuscle spasms around her spine.
Government's case
The Controlled Substances Act does notrecognize the medical use of marijuana. Agents from the federal DrugEnforcement Administration were assigned to break up California'smedical marijuana co-ops and to seize their assets. That was resultof the fact that federal law pre-empted, under the Supremacy Clause,the law of California. The government argued that if a singleexception were made to the Controlled Substances Act, it would becomeunenforceable in practice. The government also contended thatconsuming one's locally grown marijuana for medical purposes affectsthe interstate market of marijuana and the federal government maythus regulate and prohibit such consumption.
That argument stems from the landmarkNew Deal case Wickard v. Filburn, which held that thegovernment may regulate personal cultivation and consumption of cropsbecause of the aggregate effect of individual consumption on thegovernment's legitimate statutory framework governing the interstatewheat market.
Litigation
On December 16, 2003, the Ninth CircuitCourt of Appeals granted a preliminary injunction to prevent thefederal government from interfering with Raich and Monson: "Wefind that the appellants have demonstrated a strong likelihood ofsuccess on their claim that, as applied to them, the ControlledSubstances Act is an unconstitutional exercise of Congress' CommerceClause authority."
Organizations involved
Partnership for a Drug-Free America,several other anti-drug organizations, an alliance of sevenRepresentatives, including Mark Souder and Katherine Harris, allfiled amicus briefs for the side of federal government. Anenvironmentalist group, Community Rights Council, also filed a brieffor the government for fear that limitation of federal power wouldundermine its agenda.
The Cato Institute, Institute forJustice, many libertarian organizations, and the NationalOrganization for the Reform of Marijuana Laws, along with othergroups opposing the War on Drugs, filed briefs for Raich and Monson.The governments of California, Maryland, and Washington also filedbriefs supporting Raich. The attorneys general of Alabama, Louisiana,and Mississippi, three strongly anti-drug states from theconservative South, filed a brief supporting Raich, on the grounds ofstates' rights.
Decision
The ruling was 6–3 with JusticeStevens writing the opinion of the court, joined by Justices Kennedy,Ginsburg, Souter and Breyer. A concurring opinion was filed byJustice Scalia.
The opinion began by pointing out thatthe respondents did not dispute that Congress had the power tocontrol or ban marijuana for non-medical uses:
Respondents in this case do notdispute that passage of the CSA, as part of the Comprehensive DrugAbuse Prevention and Control Act, was well within Congress' commercepower. Nor do they contend that any provision or section of the CSAamounts to an unconstitutional exercise of congressional authority.Rather, respondents' challenge is actually quite limited; they arguethat the CSA's categorical prohibition of the manufacture andpossession of marijuana as applied to the intrastate manufacture andpossession of marijuana for medical purposes pursuant to Californialaw exceeds Congress' authority under the Commerce Clause.
Banning the growing of marijuana formedical use, the Court reasoned, was a permissible way of preventingor limiting access to marijuana for other uses:
Even respondents acknowledge theexistence of an illicit market in marijuana; indeed, Raich haspersonally participated in that market, and Monson expresses awillingness to do so in the future. More concretely, one concernprompting inclusion of wheat grown for home consumption in the 1938Act was that rising market prices could draw such wheat into theinterstate market, resulting in lower market prices. Wickard, 317U.S., at 128. The parallel concern making it appropriate to includemarijuana grown for home consumption in the CSA is the likelihoodthat the high demand in the interstate market will draw suchmarijuana into that market. While the diversion of homegrown wheattended to frustrate the federal interest in stabilizing prices byregulating the volume of commercial transactions in the interstatemarket, the diversion of homegrown marijuana tends to frustrate thefederal interest in eliminating commercial transactions in theinterstate market in their entirety. In both cases, the regulation issquarely within Congress' commerce power because production of thecommodity meant for home consumption, be it wheat or marijuana, has asubstantial effect on supply and demand in the national market forthat commodity.
The relevant precedents for the Court'sanalysis are Wickard v. Filburn (1942), United States v.Lopez (1995), and United States v. Morrison (2000).
Scalia's opinion
Justice Scalia wrote a separateconcurrence that had the effect of differentiating the decision fromthe previous results of United States v. Lopez and United States v.Morrison. In a departure from his textualist interpretation of theConstitution (he voted for limits on the Commerce Clause in the Lopezand Morrison decisions), Scalia said his understanding of theNecessary and Proper Clause caused him to vote for the CommerceClause with Raich for the following reason:
Unlike the power to regulateactivities that have a substantial effect on interstate commerce, thepower to enact laws enabling effective regulation of interstatecommerce can only be exercised in conjunction with congressionalregulation of an interstate market, and it extends only to thosemeasures necessary to make the interstate regulation effective. AsLopez itself states, and the Court affirms today, Congress mayregulate non-economic intrastate activities only where the failure todo so "could ... undercut" its regulation of interstatecommerce. ... This is not a power that threatens to obliterate theline between "what is truly national and what is truly local."
Dissenting opinions
Justice O'Connor dissented joined byChief Justice William Rehnquist, who authored the majority opinionsin United States v. Lopez and United States v. Morrison. O'Connorbegan her opinion by citing Lopez, which she followed with areference to Justice Louis Brandeis's dissenting opinion in New StateIce Co. v. Liebmann:
We enforce the "outer limits"of Congress' Commerce Clause authority not for their own sake, but toprotect historic spheres of state sovereignty from excessive federalencroachment and thereby to maintain the distribution of powerfundamental to our federalist system of government. United States v.Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin SteelCorp., 301 U. S. 1, 37 (1937). One of federalism's chief virtues, ofcourse, is that it promotes innovation by allowing for thepossibility that "a single courageous State may, if its citizenschoose, serve as a laboratory; and try novel social and economicexperiments without risk to the rest of the country." NewState Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J.,dissenting).
She concluded:
Relying on Congress' abstractassertions, the Court has endorsed making it a federal crime to growsmall amounts of marijuana in one's own home for one's ownmedicinal use. This overreaching stifles an express choice by someStates, concerned for the lives and liberties of their people, toregulate medical marijuana differently. If I were a Californiacitizen, I would not have voted for the medical marijuana ballotinitiative; if I were a California legislator I would not havesupported the Compassionate Use Act. But whatever the wisdom ofCalifornia's experiment with medical marijuana, the federalismprinciples that have driven our Commerce Clause cases require thatroom for experiment be protected in this case.
Justice Thomas also wrote a separatedissent, stating in part:
Respondents Diane Monson and AngelRaich use marijuana that has never been bought or sold, that hasnever crossed state lines, and that has had no demonstrable effect onthe national market for marijuana. If Congress can regulate thisunder the Commerce Clause, then it can regulate virtuallyanything—and the Federal Government is no longer one of limited andenumerated powers.
Respondent's local cultivation andconsumption of marijuana is not "Commerce ... among the severalStates."
[...]
Certainly no evidence from thefounding suggests that "commerce" included the merepossession of a good or some personal activity that did not involvetrade or exchange for value. In the early days of the Republic, itwould have been unthinkable that Congress could prohibit the localcultivation, possession, and consumption of marijuana.
[...]
If the Federal Government canregulate growing a half-dozen cannabis plants for personalconsumption (not because it is interstate commerce, but because it isinextricably 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 ofdrugs, guns, or any number of other items, it may continue to"appropria[te] state police powers under the guise of regulatingcommerce."
[...]
If the majority is to be takenseriously, the Federal Government may now regulate quilting bees,clothes drives, and potluck suppers throughout the 50 States. Thismakes a mockery of Madison's assurance to the people of New York thatthe "powers delegated" to the Federal Government are "fewand defined," while those of the States are "numerous andindefinite."
Subsequent events
Both Raich and Monson have indicatedtheir intention to continue using marijuana for medical use, in spiteof the ruling and federal law on the subject.
Two days after the ruling, theInternational Narcotics Control Board issued a statement indicatingthat the Board "welcomes the decision of the United StatesSupreme Court, made on 6 June, reaffirming that the cultivation anduse of cannabis, even if it is for 'medical' use, should beprohibited."
Its president, Hamid Ghodse, noted,"Cannabis is classified under international conventions as adrug with a number of personal and public health problems"and referred to the drug's Schedule I status, under the SingleConvention on Narcotic Drugs.
Soon after the decision in Raich, theSupreme Court vacated a lower court decision in United States v.Stewart and remanded it to the court of appeals forreconsideration in light of Raich. On remand, the Ninth Circuit heldthat Congress had the Commerce Clause power to criminalize thepossession of homemade machine guns, just as it had the power tocriminalize homegrown marijuana.
In 2007, the Ninth Circuit decidedagainst Raich, when she renewed her litigation on substantive dueprocess grounds. Judge Harry Pregerson, the author of the opinion,noted that a minority of states had legalized medical marijuana butthat under federal law, it is not a recognized "fundamentalright" under the due process clause:
For now, federal law is blind to thewisdom of a future day when the right to use medical marijuana toalleviate excruciating pain may be deemed fundamental. Although thatday has not yet dawned, considering that during the last ten yearseleven states have legalized the use of medical marijuana, that daymay be upon us sooner than expected. Until that day arrives, federallaw does not recognize a fundamental right to use medical marijuanaprescribed by a licensed physician to alleviate excruciating pain andhuman suffering.
In 2009, the Department of Justiceunder Attorney General Eric Holder issued new guidelines allowing forno longer enforcing of the federal ban in some situations:
It will not be a priority to usefederal resources to prosecute patients with serious illnesses ortheir caregivers who are complying with state laws on medicalmarijuana, but we will not tolerate drug traffickers who hide behindclaims of compliance with state law to mask activities that areclearly illegal.
When C-SPAN's Brian Lamb interviewedformer Justice John Paul Stevens about Stevens' book, Five Chiefs,Stevens cited Gonzales as a case in which he upheld the law even ifhe deplored the policy.
In Congress, to counter the effect ofthis ruling, Representative Maurice Hinchey (D-NY) and DanaRohrabacher (R-CA) annually introduced legislation to stop theDepartment of Justice from arresting and prosecuting medicalmarijuana patients. This effort succeeded for the first time as theRohrabacher–Farr amendment to the omnibus federal spending bill forthe 2015 fiscal year (section 538), which was enacted on December 16,2014.
In 2021, Justice Thomas revisitedGonzalez in a dissent from an unsigned opinion in Standing Akimbo,LLC v. United States. He noted that the reasoning in Gonzalezwas predicated upon the need to prohibit intrastate trafficking ofmarijuana to "avoid a 'gaping hole' in Congress' 'closedregulatory system'" prohibiting interstate trafficking ofmarijuana. Justice Thomas observed that the federal government'smodern practice of turning a blind eye toward marijuana possession inthe 36 states that have legalized it therefore undercut the reasoningin Gonzalez, suggesting that Gonzalez should be revisited.