Commerce Abuse

Last week, the Supreme Court heard arguments in the case of Ashcroft v. Raich, a case that touches on the fundamental concerns of federalism and individual liberty. The Court must decide whether the Constitution's Commerce Clause permits Congress, via the federal Controlled Substances Act, to prohibit the medicinal use of cannabis.

The case will also affect the quality of life and longevity of two seriously ill California women. Angel Raich suffers from paralysis, an inoperable brain tumor, seizures, chronic pain, life-threatening weight loss, and many other ailments. Diane Monson is afflicted with chronic back pain and muscle spasms caused by a degenerative disease of the spine. Their physicians, having concluded that the women's pain could not be relieved with ordinary medication, prescribed marijuana as allowed under California's Compassionate Use Act.

Both women have experienced beneficial results from the cannabis. Raich, who was once confined to a wheelchair, is again able to walk. Without the use of cannabis, however, her condition will deteriorate.

One is hard-pressed to characterize Raich's and Monson's medicinal use of cannabis as "interstate commerce." The cannabis at issue is grown using only soil, water, nutrients, tools and supplies made or originating in California. In other words, it is an intrastate, agricultural activity. But in the world of Commerce Clause jurisprudence, if a local activity affects or could affect the national economy, Congress claims the power to regulate it under the commerce power.

The Commerce Clause empowers Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." At the time of the Framing, commerce was understood as exchange or trade; it was not understood to encompass local activities such as agriculture.

By permitting Congress to regulate interstate commerce, the Framers did not contemplate restrictions on cannabis or any other homegrown crop. Instead, they sought to create a great free-trade zone within the United States by removing internal trade barriers, as Alexander Hamilton and James Madison noted in The Federalist Papers. A nation-wide free trade zone, almost all agreed, would permit the states to take advantage of division of labor and lessen tensions as goods freely crossed borders.

Hamilton specifically noted in Federalist No. 17 that the Commerce Clause would have no effect on "the administration of private justice ... the supervision of agriculture and of other concerns of a similar nature."

Hamilton's and Madison's interpretative guidance aside, as a textual matter "agriculture" cannot be read as "commerce." Obviously, Congress cannot regulate the crops grown in foreign countries or in Indian territory. And because "commerce" must mean the same thing in relation to the states, Congress cannot regulate state agriculture either. (Congressional regulation of the interstate traffic in agricultural commodities or the importation of such commodities from foreign countries would be consistent with Madison's and Hamilton's emphasis on goods crossing state borders, however.)

Thus, under a common sense, originalist interpretation of the Commerce Clause, Raich and Monson should be permitted to cultivate and use cannabis for medicinal purposes. But here is where Supreme Court precedent from the New Deal complicates matters.

In 1942, the Court considered the constitutionality of President Franklin D. Roosevelt's Agricultural Adjustment Act. In Wickard v. Filburn, the Court was presented with the question of whether Congress could regulate a farmer's growing of wheat intended solely for consumption on his farm. A local activity, lectured the Court, can "be reached by Congress if it exerts a substantial economic effect on interstate commerce."