Today in 2005: SCOTUS rules Congress may criminalize intrastate marijuana use

June 6, 2014

Today in Legal HistoryAcross the country, the changing legal landscape on same-sex marriage is constantly grabbing headlines.  It seems that on almost a monthly basis, another state’s same-sex marriage ban is struck down either as the result of legislative action or a court ruling.

However, there’s another issue that is seeing a massive shift in its legal landscape on the national level – perhaps not as dramatically as same-sex marriage, but the rate of these legal changes is surprisingly quick nonetheless.

This issue is the legal status of marijuana, and since 2012, several states have legalized the substance either for recreational use or solely for medical purposes.

And like same-sex marriage, the Supreme Court has weighed in on the issue of the legality of marijuana.  However, unlike the Supreme Court’s ruling on same-sex marriage, 2013’s U.S. v. Windsor, which struck down federal government prohibitions on the recognition of same-sex marriage, Gonzales v. Raich upheld the federal government’s ability to criminalize marijuana use and possession, even in states that have legalized it.  Raich was decided nine years ago today, on June 6, 2005.

The facts of the case begin with the 1996 legalization of medical marijuana in California.  Angel Raich and Diane Monson were California residents who suffered from a variety of serious medical conditions and sought to avail themselves of medical marijuana to alleviate their suffering.  Both had been treated by “licensed, board-certified family practitioners” who had concluded that, “after prescribing a host of conventional medicines to treat [their] conditions,” marijuana was the only drug available that provided effective treatment.  In fact, Raich’s physician noted that “forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.”

In August of 2002, county deputy sheriffs and federal Drug Enforcement Administration (DEA) agents raided Monson’s home.  The county officials concluded that Monson’s use of marijuana was entirely lawful as a matter of California law (Monson cultivated her own marijuana).  The DEA agents, however, seized and destroyed all of her cannabis plants.

Raich and Monson brought claims against the U.S. Attorney General, arguing that the federal Controlled Substances Act is unconstitutional as it relates to criminalizing their possession and manufacturing of cannabis for their personal medical use.  Specifically, the challengers argued that enforcing the CSA against them would violate the Commerce Clause, the Fifth Amendment’s Due Process Clause, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.

Raich and Monson lost at the district court level, but prevailed at the Ninth Circuit Court of Appeals, which relied on the Supreme Court’s two previous Commerce Clause decisions, 1995’s U.S. v. Lopez and 2000’s U.S. v. Morrison.  In both Lopez and Morrison, the Court ruled that the Commerce Clause did not authorize the congressional actions in question (you can read more details about those rulings here and here).

The Supreme Court reversed the Ninth Circuit by a vote of six to three, however.  Justices Kennedy and Scalia, who were in the Lopez and Morrison majorities that limited the scope of the Commerce Clause, joined with the four dissenters from those two previous cases to form a new majority in Raich, which is the sole Commerce Clause case from the past 24 years that doesn’t reduce the reach of the clause.

The majority found that “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce is firmly established.”

Citing to Wickard v. Filburn, the 1942 Supreme Court ruling that upheld Congress’ Commerce Clause power to regulate how much wheat farmers could grow for their own private consumption, the majority held “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.”

Justice Scalia wrote a separate concurrence effectively explaining the appearance of his change in position from Lopez and Morrison.

Justice O’Connor’s dissent, joined by Chief Justice Rehnquist and in part by Justice Thomas, claimed that the principles of federalism restrict Congress’ ability to criminalize growing “small amounts of marijuana in one’s own home for one’s own medicinal use.”  She wrote that she would not have supported California’s law personally, but that federalism allows a state such as California to experiment with public policy such as its medical marijuana legalization.

Justice Thomas wrote a separate dissent arguing that intrastate cultivation and consumption of marijuana is not “Commerce…among the several states.”

In spite of the ruling, however, the policy tide seems to be turning: with the legalization of the substance in several states, the Justice Department announced last August that it was “de-prioritizing” medical marijuana criminal enforcement.

Thus, unlike with same-sex marriage, it is the state and federal governments, not the Supreme Court, that have led the way in changing the legal landscape in marijuana policy.