Gonzales v. Raich: Has New Federalism Gone Up in Smoke? - Laura W. Harper

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 57 No. 4

CASENOTE

Gonzales v. Raich'. Has New Federalism Gone up in Smoke?

In Gonzales v. Raich,¹ the United States Supreme Court broke with recent federalist trends² by holding that Congress did not exceed its Commerce Clause³ power in prohibiting the local growth and use of marijuana, which was legal under California state law.⁴ While the Court asserted that this case did not break with recent precedent restricting Congress's Commerce Clause power,⁵ this decision reaffirms expansive congressional power and creates uncertainty about whether federalist principles limit congressional power.

I. Factual Bankground

Diane Monson and Angel Raich are residents of California who used marijuana to alleviate the symptoms associated with their medical conditions. Both women were treated by doctors who believed marijuana was the only effective treatment available. Monson grew her own marijuana while Raich relied on caregivers to provide the drug for free. On August 15, 2002, local sheriffs and federal Drug Enforcement Agency agents came to Monson's home. The local sheriffs determined that her possession and use of marijuana were in compliance with California's Compassionate Use Act.⁶ Despite the sheriffs' conclusion, the federal agents seized and destroyed all of Monson's marijuana plants.⁷

Raich and Monson (the "Respondents"), brought suit against the United States Attorney General seeking injunctive and declaratory relief.⁸ The Respondents sought to prohibit the enforcement of the Controlled Substance Act⁹ ("CSA").¹⁰ They argued that, as applied, the CSA violated, inter alia, the Commerce Clause.¹¹ The Northern District Court of California denied their motion for a preliminary injunction, concluding that the Respondents "[did] not demonstrate a likelihood of success on the merits of their legal claims."¹² A split Ninth Circuit Court of Appeals reversed, holding that the Respondents "'demonstrated a strong likelihood ofsuccess on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority.'"¹³ The majority relied upon the recent trend in the Supreme Court restricting Commerce Clause power.¹⁴ The Supreme Court granted certiorari to decide the Commerce Clause issue.¹⁵

II. Legal Background

The Commerce Clause was included in the Constitution by the framers as a response to the failure of the Articles of Confederation, which did not give any federal commerce power.¹⁶ Over the years, the Court's deference to Congress under the Commerce Clause has waxed and waned, as discussed below. Commerce Clause jurisprudence is crucial because it is one of Congress's most-used enumerated powers.¹⁷ The Court first addressed the issue of Congress's power under the Commerce Clause in Gibbons v. Ogden.¹⁸ The Court in Gibbons defined commerce as "the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse."¹⁹ Despite this broad definition, prior to 1937, the Court used the Commerce Clause to strike down federal economic regulations.²⁰

A. 1890-1937 Limiting Congressional Commerce Clause Power

From 1890 to 1937 the Court struggled to define congressional Commerce Clause power. While the Court upheld some congressional actions as proper regulations over the "stream of commerce,"²¹ other congressional acts were struck as being federal invasions into state power.²² The Court's actions reinforced a laissez-faire economy by preventing federal regulations.

One exemplar case from this era is A.L.A. Schechter Poultry Corp. v. United States,²³ in which the Court struck the "Live Poultry Code" as exceeding Congress's commerce clause power.²⁴ The federal regulations sought to create fair trade in the poultry industry. The law also regulated employment by prohibiting child labor, establishing a forty hour work week, and creating a minimum wage.²⁵

In striking the regulations, the Court was concerned with the potentially limitless power of the federal government to regulate if it had the power to regulate intrastate business practices, not withstanding the practical effects the Court's decision would have on the nation's economic crisis.²⁶ At the time, New York was the biggest live-poultry market in the United States.²⁷ Most of the chicken arrived in New York via freight shipments from other states.²⁸ The issue was whether the regulation of wage and salary was a Constitutional exercise of Congress's power.²⁹ The Court reasoned that the fact the poultry market included many states did not justify Congress's regulations because "the code provisions, . . . [did] not concern the transportation of the poultry from other States to New York . . . ."³⁰ The government argued that the prices of poultry were directly related to the cost of labor.³¹ The Court, however, reasoned "[i]fthe federal government may determine the wages and hours of employees in the internal commerce of a State, because of their relation to cost and price and their indirect affect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost. . . ."³² The fact that no state would enact labor protection laws because it would harm its economy was not persuasive to the Court.³³ The Court reasoned that "extraordinary conditions may call for extraordinary remedies . . . [but] [e]xtraordinary conditions do not create or enlarge constitutional power."³⁴ Practical considerations were not sufficient.

B. 1937-1995 Broad Congressional Commerce Clause Power

The shift in the Court's approach to the Commerce Clause is famously known as "the switch in time that saved nine."³⁵ After winning reelection, President Roosevelt encouraged Congress to enact a law that would have added six new justices to the Supreme Court in order to garner enough support on the bench to uphold New Deal legislation as constitutional.³⁶ Even President Roosevelt's supporters hesitated at the idea of court-packing for fear it would permanently injure judicial independence.³⁷ While it is unclear if Justice Owen Roberts was influenced by President Roosevelt's plan, he changed his vote in West Coast Hotel v. Parrish,³⁸ and ushered in a new era of congressional power.³⁹ In fact, during this era, not a single law was struck by the Court on the ground that it exceeded Commerce Clause power.⁴⁰

In National Labor Relations Board v. Jones & Laughlin Steel Corp.,⁴¹ the Court laid out its new Commerce Clause jurisprudence, holding the National Labor Relations Act (the "Act") to be constitutional.⁴² The Act regulated the relations between companies and their employees. The respondent Jones & Laughlin was a large iron manufacturing company charged with violating the Act by discriminating against its employees who were union members. The company terminated the employees. The employees brought a complaint against the company to the National Labor Relations Board, which found for the employees. When the company refused to comply with the Board's order to reinstate the employees, the agency sued the company in federal court. The district court found for the company, holding that the Act was outside the federal government's constitutional powers. The issue on appeal was whether the Act was a valid exercise of Congress's Commerce Clause power.⁴³

The Court shifted its focus from whether the activity being regulated was commerce to whether the activity had a substantial affect on interstate commerce. The Court recognized that Congress has the power to regulate and protect interstate commerce.⁴⁴ The court held that "[a]lthough activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control."⁴⁵ The Court admitted that under its ruling, the distinction between local and national was not clear and was a question of degree.⁴⁶ Unlike previous rulings, the practical effects of the Act were important to the Court.⁴⁷ The reasoning focused on how past labor problems had catastrophic effects on the nation's economy and that Congress was within its constitutional power to protect interstate commerce from the crippling effect ofa shut down in the iron industry.⁴⁸

While National Labor Relations Board was a major shift in the Court's deference to congressional authority, the most expansive Commerce Clause case of the era was Wickard v. Filburn.⁴⁹ In Wickard the Court upheld a law that allowed for the regulation of wheat grown for home consumption and never entered into the interstate market.⁵⁰ The appellee in Wickard challenged the constitutionality ofthe Agricultural Adjustment Act of 1938⁵¹ ("Adjustment Act") as it applied to him as violating the Commerce Clause. The Adjustment Act regulated wheat production by setting limits on how much could be grown. The appellee grew wheat in excess ofthe Adjustment Act's limit. He used most ofthe wheat to feed livestock and for home consumption. There was no evidence that any of the wheat was sold outside of the state. However, the Court upheld the regulations even though they applied regardless of whether or not the wheat was sold or intended for sale in the interstate market.⁵²

In holding that Congress had not exceeded its Commerce Clause power, the Court made clear its intention to defer to Congress in the area of economic regulation, and thus employed a rational basis test. Because Congress's goal of controlling the price was a legitimate legislative exercise, it may properly include wheat that was never part of the interstate market.⁵³ Thus, even if the activity regulated is purely local, if in the aggregate it has the potential to affect interstate commerce, it may properly be regulated under Congress's Commerce Clause power.⁵⁴ The Court also made clear its desire to avoid making economic...