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.
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.
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.”
Amen!
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:
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.”
Conclusion:
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.
Footnotes:
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?