Gonzales v. Raich

[Justice Stevens delivered the opinion of the Court, joined by Kennedy, Souter, Ginsburg and Breyer, JJ. Scalia, J., filed an opinion concurring in the judgment. O’Connor, J., filed a dissenting opinion, joined by Rehnquist, C.J., and Thomas, J., as to all but Part III. Thomas, J., filed a separate dissenting opinion. Justice Scalia’s concurrence in the judgment is omitted except as noted below. What follows is the opinion of the Court, then Justice O’Connor’s dissent, then a portion of Justice Thomas’s. The Court’s extended description of the Controlled Substances Act’s structure and scheduling provisions is omitted, as are the portions of both dissents dealing with the Necessary and Proper Clause.]

I. Facts and Posture

California is one of at least nine States that authorize the use of marijuana for medicinal purposes. 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, 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. The proposition was de-

[Gap in the retrieved source. Reporter page 6 — on which the Court quotes the operative text of the Compassionate Use Act and describes respondents Angel Raich and Diane Monson — was not returned by the acquisition and is therefore not reproduced here. The Court’s text resumes mid-sentence on page 7. Justice O’Connor and Justice Thomas each quote the Act in their dissents, below; those quotations are theirs and not the Court’s.]

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 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. 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 Court then sets out the history and structure of the Controlled Substances Act — the closed regulatory system, the five schedules, and marijuana’s placement in Schedule I. That discussion is omitted here. The Court turns to the commerce power.]

II. Wickard v. Filburn as Controlling Precedent

[The opinion has just restated the three categories of activity Congress may reach. Only the third — activities that substantially affect interstate commerce — is at issue.]

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; Wickard v. Filburn, 317 U. S. 111, 128–129 (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. 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 (”‘[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’” (quoting Westfall v. United States, 274 U. S. 256, 259 (1927))). 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 (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968); emphasis deleted).

Our decision in Wickard, 317 U. S. 111, 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 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. 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.

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.²⁸ Just as the Agricultural Adjustment Act was designed “to 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, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. 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.

Footnote 28

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. App. 59, 74, 87. See also Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 770, 774, n. 12, and 780, n. 17 (1994) (discussing the “market value” of marijuana); id., at 790 (Rehnquist, C. J., dissenting); id., at 792 (O’Connor, J., dissenting); Whalen v. Roe, 429 U. S. 589, 591 (1977) (addressing prescription drugs “for which there is both a lawful and an unlawful market”); Turner v. United States, 396 U. S. 398, 417, n. 33 (1970) (referring to the purchase of drugs on the “retail market”).

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. 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.²⁹

Footnote 29

To be sure, the wheat market is a lawful market that Congress sought to protect and stabilize, whereas the marijuana market is an unlawful market that Congress sought to eradicate. This difference, however, is of no constitutional import. It has long been settled that Congress’ power to regulate commerce includes the power to prohibit commerce in a particular commodity. Lopez, 514 U. S., at 571 (Kennedy, J., concurring) (“In the Lottery Case, 188 U. S. 321 (1903), the Court rejected the argument that Congress lacked [the] power to prohibit the interstate movement of lottery tickets because it had power only to regulate, not to prohibit”); see also Wickard, 317 U. S., at 128 (“The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon”).

III. The Court’s Answer on the AAA Small-Producer Exemption

[Respondents argued — as Justice O’Connor will argue in dissent, below — that Wickard is distinguishable because the Agricultural Adjustment Act exempted small farmers. This is the Court’s answer. Read it against Part VIII.E of this file, which is the dissent’s half of the same exchange.]

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 Filburn’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. 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 Filburn 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.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.

Footnote 30

See id., at 125 (recognizing that Filburn’s activity “may not be regarded as commerce”).

Findings in the introductory sections of the CSA explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA. The

[Gap in the retrieved source. Reporter page 21 — on which the Court block-quotes the CSA’s congressional findings — was not returned by the acquisition and is not reproduced here. The Court’s text resumes on page 22.]

IV. The “Gaping Hole” Holding

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; see also Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276–280 (1981); Perez, 402 U. S., at 155–156; Katzenbach v. McClung, 379 U. S. 294, 299–301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 252–253 (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, 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.

V. The Distinction from Lopez and Morrison

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, and Morrison, 529 U. S. 598. 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 (quoting Wirtz, 392 U. S., at 193 (emphasis deleted)); see also Hodel, 452 U. S., at 308.

At issue in Lopez, 514 U. S. 549, 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:

“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.

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 3d 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 unless the intrastate activity were regulated.” Lopez, 514 U. S., at 561.³⁴ Our opinion in Lopez casts no doubt on the validity of such a program.

Footnote 34

The principal dissent asserts that by “[s]eizing upon our language in Lopez,” post, at 46 (opinion of O’Connor, J.), i. e., giving effect to our well-established case law, Congress will now have an incentive to legislate broadly. Even putting aside the political checks that would generally curb Congress’ power to enact a broad and comprehensive scheme for the purpose of targeting purely local activity, there is no suggestion that the CSA constitutes the type of “evasive” legislation the dissent fears, nor could such an argument plausibly be made. Post, at 47 (O’Connor, J., dissenting).

Nor does this Court’s holding in Morrison, 529 U. S. 598. 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.‘“³⁵ Morrison, 529 U. S., at 610.

Footnote 35

Lopez, 514 U. S., at 560; see also id., at 573–574 (Kennedy, J., concurring) (stating that Lopez did not alter our “practical conception of commercial regulation” and that Congress may “regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy”).

VI. The Definition of “Economics”

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 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.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.

Footnote 36

See 16 U. S. C. § 668(a) (bald and golden eagles); 18 U. S. C. § 175(a) (biological weapons); § 831(a) (nuclear material); § 842(n)(1) (certain plastic explosives); § 2342(a) (contraband cigarettes).

[The Court closes by rejecting the Ninth Circuit’s attempt to carve out a “separate and distinct” class of intrastate, noncommercial, physician-recommended medical use, holding that Congress acted rationally in declining to exempt it. The judgment of the Court of Appeals is vacated and the case remanded.]

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VII. Scalia, J., Concurring in the Judgment

[Justice Scalia concurred in the judgment on Necessary and Proper Clause grounds rather than joining the Court’s substantial-effects analysis. His opinion is omitted; only its closing lines are reproduced, and they are his words alone, not the Court’s.]

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. That is sufficient to authorize the application of the CSA to respondents.

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VIII. O’CONNOR, J., DISSENTING

[Justice O’Connor, with whom The Chief Justice and Justice Thomas join as to all but Part III, dissenting. Everything in this section is a dissent. It is not the holding of the case and is not the Court’s reasoning. Excerpts.]

A. Federalism as Laboratory; the “Perverse Incentive”

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 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (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 (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 (1993); Whalen v. Roe, 429 U. S. 589, 603, n. 30 (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 (2000). Accordingly I dissent.

[Part I of the dissent restates the four Lopez considerations and applies them to the Gun-Free School Zones Act.]

In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account.

B. Packaging Local Regulation in a Broader Scheme

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 23, 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,’” ante, at 24. 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.

C. “Lopez Stands for Nothing More than a Drafting Guide”

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, 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 24–25. 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 inter-

[The sentence continues on a page not returned by the acquisition. Justice O’Connor’s text resumes at page 49.]

D. The Critique of the Majority’s Definition of “Economic”

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 (“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. 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 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.

In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial activity. See Morrison, 529 U. S., at 611, n. 4 (intrastate activities that have been within Congress’ power to regulate have been “of an apparent commercial character”); Lopez, 514 U. S., at 561 (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 (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”).

E. The AAA Small-Producer Exemption — “the Home Cook’s Herb Garden”

[This is the dissent’s half of the paired exchange. The Court’s answer — that the Secretary’s exemption of smaller farms “did not speak to his power” and played no role in Wickard’s analysis — is in Part III of this file, above.]

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, established federal regulatory power over any home consumption of a commodity for which a national market exists. 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. 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. 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.

F. The Inadequacy of the CSA’s Findings

[Justice O’Connor turns to the congressional findings the Court relies on and compares them with the record held insufficient in Morrison*.]*

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 or approval 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). 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 (1988), and have no reason to think otherwise here.

Piling assertion upon assertion does not, in my view, satisfy the substantiality test of Lopez and Morrison.

G. Conclusion

[Part III, which follows, is the portion of the dissent that The Chief Justice and Justice Thomas did not join.]

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.

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IX. THOMAS, J., DISSENTING

[Justice Thomas dissented separately, for himself alone. Everything in this section is his and is neither the Court’s reasoning nor Justice O’Connor’s dissent. Excerpts.]

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.

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.

[Justice Thomas restates the founding-era understanding of “commerce” he set out in his Lopez concurrence — selling, buying, bartering, and transporting for those purposes, in contrast to productive activities like manufacturing and agriculture — and then turns to the majority’s dictionary.]

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.‘“⁷ Ante, at 25 (quoting Webster’s Third New International Dictionary 720 (1966)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49–50 (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.

Footnote 7 (Thomas, J., dissenting)

Other dictionaries do not define the term “economic” as broadly as the majority does. See, e. g., The American Heritage Dictionary of the English Language 583 (3d ed. 1992) (defining “economic” as “[o]f or relating to the production, development, and management of material wealth, as of a country, household, or business enterprise” (emphasis added)). The majority does not explain why it selects a remarkably expansive 40-year-old definition.

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. The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from ”‘[c]ommerce,’” ante, at 5, to “commercial” and “economic” activity, ante, at 23, and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market,” ante, at 26. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.

[Gap in the retrieved source. Reporter page 71, on which Justice Thomas’s dissent closes, was not returned by the acquisition and is not reproduced here.]

Notes & Questions

1. Big picture. Ten years separate Lopez from this case, and the same five-Justice bloc does not reassemble. Ask first what actually changed. It was not the test: Raich applies the substantial-effects category exactly as Lopez stated it, and it does not overrule or narrow Lopez — it distinguishes it. So the work in this opinion is done by a single move, and the move is about the statute, not the activity. Marijuana grown in a closet for one sick person is, on any honest account, less commercial than a gun in a school zone is criminal; what saves the Controlled Substances Act is that it is long and Lopez’s statute was short. Hold that next to Gibbons, which you read at the front of this module. Marshall said the restraints on the commerce power are political rather than judicial. Lopez said there are judicial ones after all. Raich says there are, but that a sufficiently comprehensive Congress can route around them. Which of those three propositions does this Court actually believe? And notice who is in dissent: the author of the Lopez concurrence urging that the Court go no further, and the author of the Lopez concurrence urging that it go much further, on the same side of the same judgment for opposite reasons.

2. Raw specific knowledge — finish the table. You now hold five of the six considerations in Step 2. From Lopez you took economic activity, congressional findings, the jurisdictional nexus, and traditional state powers. This case supplies the fifth: whether the challenged application is part of a comprehensive scheme of federal regulation that would be undercut if the activity were left unregulated. Write it out in the Court’s own terms, and be precise about the direction of the metaphor — the Court says that failing to regulate would leave a gaping hole in the statute. The hole is what an exemption would open, not something Congress is closing. Then record: (a) the vote and the line-up, including which Justices joined which parts of O’Connor’s dissent and which did not; (b) the Court’s definition of “economics” and where it comes from — a dictionary, not a case; (c) the two textual formulations of the Lopez/Morrison distinction, brief single-subject statute against lengthy and detailed framework, and facial challenge against as-applied excision; and (d) the Court’s own word for how important that distinction is. One word. Know it.

3. Practical application — you are drafting for a legislature. A state has legalized something the federal government prohibits — cannabis in 2005, but run the exercise on whatever the current example is. (a) You act for Congress and you want the federal prohibition to reach the purely intrastate, non-commercial case. After Raich, what does your statute have to look like? Write the three structural features you would insist on. (b) Now switch sides. You act for a state that wants to insulate its own citizens’ purely local conduct from federal reach. What is left to you after this decision — is there any drafting move, any factual record, any severability argument that works? (c) Canna Provisions, Inc. v. Bondi, the First Circuit’s 2025 decision, is an as-applied challenge arguing that Raich has been overtaken by twenty years of federal non-enforcement and near-universal state legalization. Certiorari was denied. Construct the strongest version of that argument from the text of this opinion — and then say honestly whether the opinion leaves room for it, or forecloses it. Note carefully what the Court says about the class of activities being regulated and about whether a court may subdivide that class.

4. Attack the reasoning — is Lopez a drafting guide? This is the sharpest sentence any dissenter writes in this module, and it is not rhetoric; it is a structural objection that you should be able to state as a syllogism. O’Connor’s charge is that the majority’s rule rewards Congress for legislating broadly and punishes it for legislating with precision, so that the constitutional limit Lopez announced can be satisfied by a competent draftsman rather than by any change in what Congress actually does. (a) State the objection in your own words in three sentences. (b) Now answer it. The Court has an answer, and it is not a bad one — that a comprehensive scheme is a different constitutional object than a lone prohibition, because its parts depend on each other in a way a single-subject statute’s do not. Is that a principled distinction or a restatement of the problem? (c) Test it against the paired exchange this reading preserves: O’Connor says the Agricultural Adjustment Act exempted small producers, so Wickard never reached anything as modest as a home garden; the Court replies that the exemption played no part in the analysis. Who has the better of that, and — more useful — what does the disagreement tell you about how much work Wickard was ever really doing? (d) On my board this factor reads: comprehensive scheme of federal regulation = loopholes. Reconcile my phrasing with the Court’s “gaping hole.” Same logic, same direction; make sure you can say why.

5. Creative thinking — the aggregation you are willing to accept. Wickard aggregated one farmer’s wheat with every similarly situated farmer’s wheat. Raich aggregates one patient’s six plants with the national market in a drug that has no lawful national market at all. (a) That last point is the puzzle: aggregation in Wickard worked because home-grown wheat competed with wheat in commerce. What exactly is the interstate market that Monson’s plants overhang, given that every transaction in it is a federal crime? Is the Court aggregating an effect on a market, or on the enforceability of a prohibition? Those are not the same thing, and the difference decides the case. (b) Design the limiting principle. Write a rule, in two sentences, under which Wickard and Raich both come out the same way they did, but under which some purely local activity still lies beyond Congress. Then stress-test it against the hypothetical Chief Justice Roberts will offer seven years from now about a mandate to buy vegetables — and notice, when you get there, that Justice Ginsburg answers him with Lopez’s own weapon, the chain of inferences piled too high. (c) Finally, the honest question: if you cannot write that rule, is the fault in your drafting or in the doctrine?