An introduction to Constitutional Law 100 Supreme Court cases everyone should know

Angel Raich

The Rehnquist Court (1994-2005). Seated, from left to right: Antonin Scalia and John Paul Stevens, Chief Justice William H. Rehnquist, and Justices Sandra Day O'Connor and Anthony M. Kennedy. Standing, from left to right: Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Stephen G. Breyer.

In 1996 California voters passed the Compassionate Use Act, which legalized marijuana for medical use. California’s law conflicted with the federal Controlled Substances Act--or CSA--which banned the cultivation, possession and distribution of marijuana.

The Oakland Cannabis Buyers Cooperative

The Oakland Cannabis Buyers Cooperative

Marijuana plants

Marijuana plant

Marijuana plant

Angel Raich, was suffering from several intractable illnesses--including a brain tumor--which had caused a wasting syndrome. Her weight loss threatened her life, until a nurse suggested she try marijuana. Using marijuana allowed her to gain weight and strength.

Randy Barnett and the legal team representing the Oakland Cannabis Buyers Cooperative.

Angel Raich and Randy Barnett at the Supreme Court

Angel Raich and Randy Barnett at the Supreme Court

Angel Raich and Randy Barnett at the Supreme Court

Angel Raich and Randy Barnett at the Supreme Court

Angel Raich and Randy Barnett at the Supreme Court

Angel Raich and Randy Barnett at the Supreme Court

Demonstrators outside the Supreme Court

Demonstrators outside the Supreme Court

The OCBC took care that no items used to cultivate the marijuana had ever traveled in interstate commerce. Therefore, there was no “jurisdictional hook.”

Although we lost in the Northern District of California, we prevailed in the Ninth Circuit and the Supreme Court granted cert.

Before the Supreme Court, the Bush administration was represented by Solicitor General Paul Clement.

For example, because Roscoe Filburn grew wheat on his own farm to feed his livestock, he did not need to purchase that wheat on the interstate marketplace. Likewise, because Diane Monson grew her own cannabis, she did not have to buy marijuana on the interstate marketplace. This framework was known as the market substitute theory. We responded that Wickard was distinguishable. Unlike Angel and Diane, Roscoe Filburn was engaged in commercial farming, which was an economic activity. Furthermore, if anything that serves as a substitute for goods or services obtained in the market can be considered “economic,” there would be no limit on Congress’s power because nearly any activity we do for ourselves, can also be provided by a commercial service.

Justice David H. Souter suggested that, whether or not an activity was “economic” depends on whether it had an economic effect on the national economy.

Justice Souter: "If there would be a large market effect it makes no more sense to call this non-economic than Filburn's use."

Lopez and Morrison stood for the proposition that the mere fact that activities may have an economic effect on the market does not are not make them economic activities.

"Whether an activity is economic, you have to look to the activity, itself, and an economic activity is one that's associated with sale, exchange, barter, the production of things for sale and exchange, barter."

"Prostitution is an economic activity. Marital relations is not an economic activity. We could be talking about virtually the same act."

“Raich will replace Wickard v. Filburn as the most far-reaching example of Commerce Clause authority over intrastate activity.”

Ultimately, the Court ruled for the government by a vote of 6 to 3. The four progressives justices were joined by two of the conservative justices from the Lopez and Morrison majority: Justices Kennedy and Scalia.

Angel Raich, hearing the news that the Supreme Court ruled against her.

"Congress has the power to regulate purely local activities when necessary to implement a comprehensive national regulatory program,” which in this case was the Controlled Substances Act.

Justice Stevens relied on Webster’s Third New International Dictionary’s definition of “economic” as “the production, distribution, and consumption of commodities.” Because Angel’s caregivers and Diane were engaged in the activity of producing marijuana, according to Webster’s Third, they were engaged in economic activity.

“Congress could reasonably conclude,” Justice Scalia wrote, “that its objective of prohibiting [local] marijuana from the interstate market ‘could be undercut’ if those activities were excepted from its general scheme of regulation.”

In Raich, Justice Scalia found that the CSA was both “necessary” and “proper” to regulate the interstate drug market. In contrast, in Printz, he found that the Brady Act provision may have been “necessary” to regulate the interstate firearms market, but was not a “proper” means of doing so, because it impinged on state sovereignty.

Justice Thomas also dissented. In his separate opinion, he urged--as he had in both Lopez and Morrison--that the Court should abandon the “substantial effects” test altogether because it was not consistent with the original meaning of Congress’s enumerated powers. “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.”

Justice O’Connor rejected the Court’s broad definition of “economic,” which she said “threatens to sweep all of productive human activity into federal regulatory reach.” Quoting from NLRB v. Jones & Laughlin Steel, Justice O’Connor objected to the Court’s use of “a dictionary definition of economics to skirt the real problem of drawing a meaningful line between ‘what is national and what is local.’”

Implied Powers on the Rehnquist Court

Angel Raich, was suffering from several intractable illnesses — including a brain tumor — which had caused a wasting syndrome. Her weight loss threatened her life. A nurse suggested that she try marijuana. The controlled substance allowed Raich to regain weight and strength. Diane Monson, another Californian, used medical marijuana to relieve her back pains and spasms, which had not responded to conventional therapy. Because the federal government seized Monson’s plants, she had a concrete injury, and “standing,” to bring the challenge.

Randy Barnett and his legal team filed a civil suit to halt the enforcement of the CSA against Angel and Diane. Critically, neither Plaintiff purchased marijuana. Angel’s caregivers grew the cannabis and gave it to her at no charge. Diane grew her own plants, and thus did not have to buy it. The plaintiffs contended that, under the limiting principle established by Lopez and Morrison, Congress could not regulate this entirely intrastate non-economic activity. Furthermore, because no items used to cultivate the marijuana had ever traveled in interstate commerce, there was no jurisdictional hook.